Why Is Israel’s Blockade of Gaza Legal? (Updated)

by Kevin Jon Heller

I know that will sound like a provocative question, but it’s not meant to be. According to the Jerusalem Post, Israel justifies its interdiction of the “Freedom Flotilla” by reference to Article 67(a) of the San Remo Manual on International Law Applicable to Armed Conflict at Sea, which permits the attack of neutral merchant vessels that “are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture.” The interdiction thus depends on the legality of the blockade of Gaza — and I am genuinely confused as to why that blockade is legal. The Jerusalem Post says the Israeli government is arguing that “Israel was in a state of armed conflict with Gaza and therefore entitled by international law to blockade Gaza.” But that defense ignores a critical question: what kind of armed conflict?

If the conflict between Israel and Hamas is an international armed conflict (IAC), there is no question that Israel has the right to blockade Gaza. (Which is not to say that the manner in which Israel is blockading Gaza is legal. That’s a different question.) The 1909 Declaration Concerning the Laws of Naval War (the London Declaration), the first international instrument to acknowledge the legality of blockades, specifically recognized the right of belligerents to blockade their enemy during time of war. Article 97 of the San Remo Manual does likewise. And there is certainly no shortage of state practice supporting the legitimacy of blockades during IAC (the US blockade of Cuba, for example).

But what justifies a blockade in non-international armed conflict (NIAC)? The London Declaration does not justify such a blockade, because it only applies to “war”– war being understood at the time as armed conflict between two states. Does the San Remo Manual justify it? The Manual is not a picture of clarity concerning when its rules apply, but it does not seem to contemplate non-international sea conflicts. Article 1 speaks of “the parties to an armed conflict at sea,” which does not seem to include NIAC, unless perhaps a rebel group has a navy. (Do any?) Article 2 parallels the Martens Clause in the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, which only applies to IAC. Article 3 acknowledges the right of self-defense under Article 51 of the UN Charter, but — as Marko Milanovic has pointed out — that right is an exception to the prohibition on the use of force in Article 2(4), which only operates between states. And numerous articles in the Manual refer specifically to “belligerent States” (see, for example, 10, 20, 34).

There also appears to be little, if any, state practice to support the idea that a blockade is legally permissible in NIAC. According to the Jerusalem Post, the Israeli government is defending the blockade by citing Yoram Dinstein’s statement that “there are several instances of contemporary (post-UN Charter of the Law of the Seas) practices of blockades, e.g. in the Vietnam and in the Gulf War.” But those were all blockades in IAC. I can’t think of any blockades in NIAC other than Israel’s blockade of Gaza — though readers should feel free, of course, to correct me.

The seeming absence of support for blockades in NIAC is obviously important, because it is difficult to argue that Israel is involved in an IAC with Hamas. First, it is obviously not in a traditional IAC, because Gaza is not a state. Second, not even Israel claims that the conflict has been internationalized by the involvement of another state. And third, although the Israeli Supreme Court held — controversially — in the Targeted Killings case that armed conflict between an occupying power and a rebel group is international, Israel’s official position is that it not currently occupying Gaza.

Israel’s defense of the blockade thus appears to create a serious dilemma for it. Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC with Hamas. And if it is not currently involved in an IAC with Hamas, it is difficult to see how it can legally justify the blockade of Gaza. Its blockade of Gaza, therefore, seems to depend on its willingness to concede that it is occupying Gaza and is thus in an IAC with Hamas. But Israel does not want to do that, because it would then be bound by the very restrictive rules of belligerent occupation in the Fourth Geneva Convention. (For a discussion of the difference between the humanitarian obligations imposed by belligerent occupation and by blockades, see Dapo Akande’s post at EJIL: Talk! here.)

There is, however, another possibility: that Israel’s blockade of Gaza is not a “belligerent blockade” at all, but is instead something akin to a “pacific blockade,” defined by the Dictionary of International Law as “a form of coercive measure short of war, whereby a state (or group of states) bars access to the coast of a state or part of it in order to prevent entry and exit of ships of the state under blockade.” I say “akin to” a pacific blockade, because — as the definition indicates — such blockades assume that the blockaded entity is a state, not a non-state actor. Even if Israel’s blockade of Gaza would analogically qualify as a pacific blockade, however, it would still be of questionable legality: pacific blockades are only legal with the approval of the Security Council, according to the Dictionary of International Law, and the Security Council has never approved the blockade of Gaza.

It seems to me, in short, that it is difficult to argue Israel has the legal right to blockade Gaza. But let me be clear — I am not certain that I am correct. I am not an expert regarding the law of blockades. I am not an expert regarding the law of the sea. I am not an expert regarding the San Remo Manual. So I am genuinely open to being convinced that my argument is wrong.

Readers? Your thoughts? (And be warned that I will delete nasty or irrelevant comments. I’m trying to encourage genuine academic debate over the legality of the blockade; I have no interest, at least in this post, in debating the normative or political merits of Israel’s actions.)

UPDATE: As a number of commenters have pointed out, Lincoln’s blockade of the Confederate States of America (CSA) during the Civil War is a relevant historical precedent. But I think that the Civil War blockade actually supports the argument I’ve made above. As noted in the Lincoln section of the University of Virginia’s Miller Center of Public Affairs, the international community viewed the blockade as an act of war that required the CSA to be formally recognized as a belligerent, thus effectively transforming what was previously a NIAC into an IAC:

The first crisis occurred when England issued a proclamation of neutrality, which rested upon the logic of the Union’s declared blockade. According to English reasoning, although Lincoln proclaimed the rebels to be insurrectionists and thus not recognizable under international law as a belligerent power engaged in war, his declared blockade was an act of war, which would have to be conducted against a sovereign state. Thus Lincoln had actually granted belligerency status to the Confederacy and thereby forced foreign powers to do the same. By proclaiming neutrality, England afforded the Confederacy the status of a belligerent power. Other European nations followed England’s lead. Belligerency status gave the Confederacy the right, according to international law… to contract loans and to purchase arms from neutral nations. It also allowed England to provide safe harbors for both Union and Confederate warships and merchant vessels, to build blockade runners and warships for the Confederacy, and to formally debate in Parliament the merits of active intervention.

L.C. Green, one of the great IHL scholars, agrees with this analysis. If this is still the state of the law — and I don’t know whether it is — it would be possible to argue that Israel’s conflict with Hamas is an IAC and Israel is thus entitled to blockade Gaza.

But there’s a catch — and a big one. If the “cost” of the blockade is formally recognizing Hamas as a belligerent, maintaining the blockade would mean recognizing Hamas fighters as privileged combatants. (Just as the armed forces of any state are privileged combatants.) That would be fundamentally unacceptable to Israel, because Hamas fighters would then be entitled to attack Israeli combatants and would have to be treated as POWs upon capture.

187 Responses

Thanks for this post.

No idea either, but since Israel is citing the provisions of San Remo Manual and 1909 London Declaration perhaps they could explain why these documents would be applicable in the first place. Unless these provisions constitute customary international law (and blockade practice seems to be scarce in that regard), what is their relevance in this situation?

The idea behind Sam Remo seems to “consolidate customary international law”, but again, is there enough state practice to support particular rules, as these on Gaza blockade?

6.02.2010
at 8:20 am EST Well

I have no idea, but quite an interesting analysis. Now, I’d be quite interested in whether paintball guns(the first few soldiers had them apparently, and if you know anything about paintball guns, being shot by one is less than a bee sting) affect the belligerence, at least at the outset, of the israeli raid.

Given how much second-guessing is going on about what Israel can and cannot do according to international law, the IDF performance in a competition with 44 other groups should give pause to anyone making glib condemnations.

6.02.2010
at 8:41 am EST Edward Brynes

Edward Brynes:

It is great that kids are studying IHL, but how is that relevant to the present discussion about the blockade? Does it mean that Israel has a final say on any IHL interpretation?

6.02.2010
at 8:55 am EST Well

Unfortunately, my knowledge of customary international law is derived from study of the American Civil War, not more recent conflicts, but the law at that time was that a country engaged in a non-international conflict (i.e., against rebel forces) could close the ports which it did not control. At that point, despite the slight nomenclatural difference (“closing” versus “blockading” a port), the customary laws of war applicable to blockades (e.g., laws regulating when neutral ships may be boarded, attacked, captured etc.) would apply. I believe that is Israel’s current situation.

6.02.2010
at 8:55 am EST wm13

Well

No of course Israel has no final say. Who does have a final say? I live in the US and feel I should have some say in in IHL since it will have an effect on me. But I have no such say as with proposed US law. Why am I to be ruled by international law professors and jurists?

OK Prof Heller, go ahead and delete that.

6.02.2010
at 9:07 am EST Edward Brynes

As a non legal wonk, I headed to my university library to pick up a few books on the issue, and they all talk about IAC, so I’ve been similarly scratching my head.

I have a related question. Can a belligerent state act upon a ship regardless of the distance from a blockaded zone, or does the ship need to be inside a zone before being intercepted?

If so, did Israel give clear notification of this zone? Their MFA briefing doesn’t mention it. In their favour, they stopped the ships at the same distance the stopped others last year – 67 nautical miles from the Israeli coast.

The Civil War is an interesting case, but I don’t think it affects the analysis. As LC Green, one of the great IHL scholars, has pointed out, the customary law of war only applied at that time to international conflicts. The reason the customary law of war applied to the Civil War was that foreign governments formally recognized the Confederacy as a belligerent, effectively transforming the Civil War into an international conflict. Indeed, as the State Department’s Office of the Historian has noted, foreign governments only accepted the blockade as legal because the Confederacy was recognized as a belligerent. The Civil War thus supports the idea that Israel’s blockade is unjustified in the absence of IAC.

In 1948 many Arab states declared war on Israel, and while some of them (Egypt, Jordan) have made peace, others (Syria, Lebanon) are still formally at war with Israel. Palestine was to be partitioned into two countries, but Gaza was seized by the Egyptians. Gaza is now unoccupied territory not part of any recognized country, but run by Hamas an ally of Syria and Hezbollah who are part of a formal international armed conflict.

There are, therefore, several different competing legal theories about why Israel is entitled to blockade Gaza. It could be occupied territory, a militia allied to enemy countries in an international war, a secessionist territory recognized by various countries like the CSA, part of an actual country engaged in an armed conflict.

What has not been proposed is any legal theory in which Gaza occupies the status of being part of a recognized country that is at peace with Israel, which is the only theory that would make the blockade illegal. Is it important at this time to determine precisely which justification is strongest. Given over sixty years of conflict during which none of these legal theories has been resolved, is there any framework to make this determination.

6.02.2010
at 9:34 am EST Howard Gilbert

I actually think the argument comparing the situation to the US Civil War is pretty pertinent. In many respects, the situation of the Palenstinians in Gaza/Hamas is pretty similar to the Confederacy, of course in more modern terms. They are not a state, but de facto exercise state-like functions on their territory; moreover, the UN GA routinely acknowledges their right to self-determination, apparently making them a subject of international law for the purpose of their struggle. This is one of the closest things to recognition of belligerency you get in contemporary world affairs…
I am not sure if there were serious protests against the blockade before this incident happened, so I cannot gage the opinio juris 😉 of the international community appears in this respect, but if nobody acted as an objector to the blockade before yesterday, then arguably a rule could have been formed that in such situations a blockade is warranted.

6.02.2010
at 9:52 am EST Guy2

Dear Kevin,

I do not wish to take a firm stand in the discussion on the legality of the blockade (as I am not an expert on this issue either since I – unfortunately – do not belong to the very small group of experts on naval warfare) or with regards to the conflict in general. However, I do have an observation in relation to the influence of the nature of the conflict on the matter. (see your paras 4-6)
Based on CA 2 of the GCs, the government position of Israel as to the existence of a situation of occupation does not impact on the legal nature of the situation. Hence, if one is to except that Gaza is occupied, irrespective of Israel’s view on the matter, the conflict would be an IAC.
Be that as it may, I agree with your “you can’t have the cake and eat it” argument insofar that Israel cannot on the one hand claim not be bound by the rules of LoIAC (to use Dinstein’s abbreviation) in its conflict with Hamas, yet at the same time rely on the LoIAC in order to argue that the blockade is legitimate. I do not agree, however, that a blockade would never be possible in a NIAC-situation (or at least a situation dealing with a non-state actor; leaving aside the discussion as to the status of Hamas and the status of ‘transnational armed conflicts’). It seems to make sense that a state should be allowed to control its own coastline and block the flow of goods into its own territory, if it so wishes – also in times of an NIAC taking place in the said state. Blockades thus seem foreign to NIACs in the same way as occupation of one’s own territory is not possible in a NIAC (i.e. when government forces would re-take control over a part of the state’s territory that was previously controlled by the non-state actor fighting the government). However, in answer to your request to be corrected about blockades in NIAC situations (end of your para. 4), I would like to point to the American Civil War. Although NIACs did not exist as such (as it was pre-1949), the American Civil War is commonly considered to have been a civil war, hence for the purposes of this discussion a NIAC, the Union imposed a blockade on the Confederate States. I quote here from an article I published in the International Review of the Red Cross (Vol. 91 No. 873):

“Soon after the outbreak of hostilities, President Lincoln imposed a naval blockade on the entire Southern coast; this was seen as an implied recognition of belligerency vis-a-vis the South. […] This was confirmed by the US Supreme Court in December 1862. (See Quincy Wright, ‘The American Civil War, 1861–65’, in Richard A. Falk (ed), The International Law of Civil War, John Hopkins Press, Baltimore, 1971, p. 42.)”

Applying this to the current case, it follows that even if one initially considered the conflict between Israel and Hamas as a NIAC, a blockade would still be possible but would result in implied recognition of Hamas as a belligerent. Whilst under the classic laws of war this would not affect the status of the conflict, it would lift the situation to one to which international law would be applicable.

6.02.2010
at 9:53 am EST Rogier Bartels

Roger,

I certainly agree with you about the question of occupation — it’s one of fact, not one determined by the ostensible occupier. My point, as you recognize, is that Israel is not about to take the position that it is occupying Gaza in order to justify the blockade.

I also agree with your final point about implied recognition of belligerency — but Israel would certainly never accept that justification for the blockade, either, because it would mean that Hamas fighters would be privileged belligerents who could lawfully attack Israeli soldiers and who would be entitled to POW status if captured.

There is quite interresting argument, that Gaza blockade is illegal because of it’s impact on civilian population.

Associate Professor Ben Saul is Co-Director of the Sydney Centre for International Law at The University of Sydney. He argues:

What Israel conveniently omits to mention is that the San Remo Manual also contains rules governing the lawfulness of the blockade itself, and there can be no authority under international law to enforce a blockade which is unlawful. Paragraph 102 of the Manual prohibits a blockade if “the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade”

Intersting article. it seems as if there is a legal loophole for hamas and its supporters to act as it pleases, while Israel’s hands are tied. In this situation, what rules would be applicable?

6.02.2010
at 10:09 am EST Liron

In between reading the initial post (without any comments) and sending my comment, I was typing the said typing and having a coffee. I now see that others have also pointed to the American Civil War. I agree with these others.

6.02.2010
at 10:20 am EST Rogier Bartels

I suppose this has to do with the recent discussion on EJIL: Talk! about line drawing between NIAC and IAC. There are certainly some elements present here that make this conflict international, including the fact that Israel does not interfere with the way Hamas governs the people of the Gaza strip. Even though Gaza is not a state, it would certainly qualify for recognition as a belligerent if states still did such a thing.

Personally, I don’t think the argument of the original post holds, because absence of proof is not proof of absence: a blockade doesn’t come up very often in the context of a NIAC, which is why there isn’t a lot of law or practice on it. But that doesn’t mean that states have ever viewed a blockade as less legitimate or less lawful in a NIAC than in an IAC. For the purposes of this problem, I don’t see why one should make the distinction.

Given that, the only part that I am wondering about is whether Israel is entitled to carry out its blockade on the High Seas. AFAIK, it is certainly allowed to search for weapons, etc. on the high seas – again on a theory of some form of self-defense – but carrying out a blockade there seems like an unlawful interference with the free navigation of the high seas to me.

I don’t think either that Israel would accept the “belligerency-justification” of the blockade, but that brings us back to your (correct) “you can’t have the cake and eat it”-argument.

6.02.2010
at 10:26 am EST Rogier Bartels

I found this on the website of the University of Virginia’s Miller Center for Public Affairs. It clearly supports the idea that a blockade can only lawfully be conducted against a state or against a rebel group recognized as a belligerent:

The first crisis occurred when England issued a proclamation of neutrality, which rested upon the logic of the Union’s declared blockade. According to English reasoning, although Lincoln proclaimed the rebels to be insurrectionists and thus not recognizable under international law as a belligerent power engaged in war, his declared blockade was an act of war, which would have to be conducted against a sovereign state. Thus Lincoln had actually granted belligerency status to the Confederacy and thereby forced foreign powers to do the same. By proclaiming neutrality, England afforded the Confederacy the status of a belligerent power. Other European nations followed England’s lead. Belligerency status gave the Confederacy the right, according to international law (signed by European nations after the Crimean War in 1856), to contract loans and to purchase arms from neutral nations. It also allowed England to provide safe harbors for both Union and Confederate warships and merchant vessels, to build blockade runners and warships for the Confederacy, and to formally debate in Parliament the merits of active intervention.

In The Prize Cases, I believe the Supreme Court found that the laws of war, particularly those of blockade and prize, applied to civil wars. It relied to some extent on declarations of neutrality by foreign governments. It did not, if memory serves, thereby convert the conflict into an international armed conflict. It only concluded that it was a conflict subject to the laws of war.

Whether that view ever reflected customary international law, or if so whether that customary law survives to the modern day, is certainly questionable. It is possible to see the Additional Protocols to the Geneva Conventions as only adding express agreement to apply certain protections in non-international armed conflict while leaving untouched any customary international law that preceded them.

The first protocol also expanded the scope of conflicts subject to the rules of international armed conflict to include certain types or forms of non-international armed conflict — those against colonialism, alien occupation and racist regimes. One could debate whether the Israel-Gaza conflict falls somewhere in there.

Certainly there are some non-international armed conflicts that do not meet the requirements of Article 1 of the second protocol but are still governed by international humanitarian law. Some view customary international humanitarian law as regulating all armed conflicts of any type regardless of their character as international or non-international. The ICRC’s customary international humanitarian law study went a long way toward adopting that view.

With regard to wm13’s comment, he notes essentially what the dissent argued in The Prize Cases. The dissent believed that the ports had been closed rather than a blockade instituted (based in part on the fact that the government did not claim that it had imposed a blockade under the laws of war). It also asserted that the President lacked the power to determine the existence of an armed conflict with states of the Union.

Roger’s analysis seems sound, as does your view of its likelihood of being fully adopted by the Israeli government. I would only add, though, that Israel could recognize Gaza as a belligerent without extending POW status. Recall that many argue customary international law requires fighters to meet four requirements to be considered a privileged belligerent. Israel would almost certainly claim that Hamas fighters — even if though they appear to have adopted a uniform and might be said to, at times, carry arms openly — do not fall under responsible command or follow the laws of war and are thus not privileged. I express no view.

6.02.2010
at 10:47 am EST John C. Dehn

@KJH: That precedent assumes that the practice of recognising belligerent exists. Given that it doesn’t, I don’t see how that fact makes a blockade of Gaza unlawful.

(Even if Hamas fighters aren’t “privileged belligerents” because they don’t wear uniforms, etc., the territory of Gaza, the people in it and the Hamas-government that governs it are surely a party to an armed conflict, albeit not exactly an international one.)

I don’t know anything about international law (except what I read here!), but, pragmatically, why would nations have less power to control access to their own territory than they do to control access to other nations’ territory? This result seems especially unintuitive because the maritime law treaties do not seem especially concerned with regulating nations’ treatment of their own populace.

6.02.2010
at 11:18 am EST matth

John,

Obviously, Hamas fighters could still be prosecuted for war crimes if they violated the laws of war. But I don’t see how, if a state of belligerency formally existed between Israel and Hamas, they could be deprived of POW status. Article 4(1) of GCIII refers to “members of the armed forces of a Party to the conflict,” not to members of the armed forces of a State, and it does not require such combatants to satisfy the requirements of Article 4(2). If Hamas was a belligerent, it would be a Party to the conflict. So its fighters would be entitled to POW status.

Art. 4(1) applies to the armed forces, and Art. 4(2) applies to militias. As you note, only 4(2) contains the “4 requirements.”

I have always understood the requirements in 4(2) to govern whether an individual was a privilege combatant. In other words, the requirements of 4(2) were understood to be the basic requirements for a soldier/etc. to be recognized as a privileged combatant. To put it another way, how is “a member of the armed forces” to be determined if not by references to the “4 requirements” in 4(2).

6.02.2010
at 11:39 am EST humblelawstudent

I think Prof. Heller gives the recognition of “belligerent” status in the 19th century much more significance than it had. Great Britain and France most certainly did not recognize the Confederate government, exchange ambassadors with it, make treaties with it, or otherwise treat it as a nation-state. Their recognition of its “belligerent” status did not convert the Civil War into an “international” conflict.

As I understand, “belligerent” status meant that a group was acknowledged to be conducting war according to the norms of the time, i.e., members of the group fought in uniform, under command, bore arms openly, etc. (A group which doesn’t do those things is considered merely bandits or pirates.) The idea that a group which didn’t do those things somehow has more rights than one that does, which seems to be Prof. Heller’s position, surely would have struck Palmerston and Disraeli, or Judah Benjamin for that matter, as ridiculous.

6.02.2010
at 11:48 am EST wm13

HLS,

I think the general consensus — including the longstanding US position — is that regular combatants do not have to comply with the article 4(2) requirements to maintain their POW status. See pages 8-10 of this ASIL article. (I can’t copy the text.)

I did not say that foreign governments treated the CSA as a state. I said — following the Miller Center and LC Green, whom you have not attempted to rebut — that the foreign governments treated the CSA as a belligerent instead of as an insurgent, thereby entitling the CSA, as the Miller Center points out, to the same rights and privileges as a state for purposes of the armed conflict. The very idea of belligerency implies armed conflict between sovereign equals (though not necessarily conflict between states).

The key appears to be “belligerent.” I’m not really sure what that is supposed to me in this context.

I will note that neither the UK nor France formally recognized the Confederacy. Allowing safe harbor and building their ships doesn’t change that analysis. So, either this “belligerent” designation doesn’t get you very far or it probably isn’t being used accurately.

6.02.2010
at 12:02 pm EST humblelawstudent

Thanks, I’ll check out that article.

6.02.2010
at 12:08 pm EST humblelawstudent

Another non-expert question here. Does it make a difference what goods are being interdicted by the blockade? Article 102 (b) of the San Remo Manual suggests that even for an international armed conflict, a blockade with a disproportionate impact on the civilian population is illegal. Given that Israel prevents not only weapons, but a wide variety of goods with no conceivable military use from reaching Gaza (see http://gisha.org/UserFiles/File/HiddenMessages/ItemsGazaStrip060510.pdf for a list), does that not suggest that the blockade is illegal, regardless of the status of the conflict in question?

6.02.2010
at 12:51 pm EST David44

Having thought about this on the treadmill at lunch, I think the designation of the Confederacy as a “belligerent” is a red herring. First of all, that designation was not accorded by the Union, but by foreign powers. If Germany and France want to designate Hamas as a “belligerent,” they can do so. It is not up to Israel. Second, the belligerency designation was intended and perceived as a boon to the Confederacy. Most saliently, it meant that Confederate commerce raiders were not pirates, the common enemies of mankind, but warships. Certainly I am not aware of anyone at the time suggesting that this designation was boon to the Union, legitimating what would otherwise have been an illegal blockade. If the blockade had been illegal, that would presumably mean that the Union warships enforcing it were pirates or at best war criminals, which I certainly don’t think anyone claimed at the time. At most, the designation of belligerency was a consequence of the blockade. As I said, if other nations want to designate Hamas as a belligerent, no one can stop them.

6.02.2010
at 1:09 pm EST wm13

<i> Article 1 speaks of “the parties to an armed conflict at sea,” which does not seem to include NIAC, unless perhaps a rebel group has a navy. (Do any?) </i>

The Tamil Tigers did. This point is lost on me though–is the idea that there needs to be a recognizable conflict taking place specifically <i>at sea</i> for the law to apply? Wouldn’t the smuggling of weapons by sea be relevant there?

6.02.2010
at 1:35 pm EST a

BTW, I was poking around Google to find examples of naval blockades against insurgencies. It not unprecedented, even in the modern era: The French used a naval blockade against Algeria in the 1950s, when they certainly regarded Algeria as part of France. More recently, as “a” notes, the Sri Lankans deployed a naval blockade against the Tigers.

6.02.2010
at 1:45 pm EST matth

Associate Professor Ben Saul is Co-Director of the Sydney Centre for International Law at The University of Sydney, a barrister, and a leading international authority on terrorism in international law. Dr Saul teaches the law of armed conflict and has been involved in such cases in The Hague, the Israeli Supreme Court, and in the Balibo coronial inquest:

What Israel conveniently omits to mention is that the San Remo Manual also contains rules governing the lawfulness of the blockade itself, and there can be no authority under international law to enforce a blockade which is unlawful. Paragraph 102 of the Manual prohibits a blockade if “the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade”. The background to that ‘proportionality’ rule is the experience of past world wars where naval blockades had devastating effects on civilian populations.There is little question that Israel’s blockade of Gaza is disproportionate in legal terms. The proportionality rule requires an assessment of the military advantage against the harmful effects on civilians. Israel claims that the blockade is necessary to prevent Hamas from mounting indiscriminate rocket attacks on Israeli civilians.

The UN’s Goldstone Report found that blockade may even amount to international crimes: “Israeli acts that deprive Palestinians in the Gaza Strip of their means of subsistence, employment, housing and water, that deny their freedom of movement and their right to leave and enter their own country… could lead a competent court to find that the crime of persecution, a crime against humanity, has been committed.”

Apparently, slapping a “terrorist” label on anything (even a state?) is a way to circumvent obligations states might otherwise have regarding normative notions of human rights or justice.

6.02.2010
at 2:22 pm EST JTG

While it doesn’t help answer the question of legality of Israeli actions, it may be of note that the British violated the naval rules of war by blockading Germany of non-military materials and by arming merchant ships. Those who win the war write the history.

6.02.2010
at 2:25 pm EST Mike

I’m no specialist either, and you seem to all succesfully show that the fact of knowing whether it’s an IAC or an NIAC is relevant for the legality of the blockade, at least as the law stands.
But I’m bit puzzled at the distinction in the first place. a NIAC being defined when an armed group is occupying part of a territory of the State, it would make sense that you would allow the State to prevent help military help to this part of the territory by sea (Rogier pointed that out). That’s the whole idea of a blockade and if you’re going to allow it for an IAC, I don’t see what justifies, in theory, not allowing it for an NIAC…
Whether we’re in presence of either of the two with Gaza is a different issue of course, but do you have any thoughts on the rationale for the distinction in the first place?

Sorry to break into the intellectual part of this argument, but all principles of law recognize the right to defend oneself (or one’s nation) against deadly force and aggression.

UNSC Resolution 1860, passed in January of 2009 calls for opening unimpeded access to humanitarian assistance to Gaza,which several sources are claiming supersedes the San Remo Agreement.

However, that same UN resolution also calls for an end to violence against civilians and for member states to end ‘illicit trafficking in arms and ammunition.’

One could make the argument that since Hamas, Syria and Iran never abided by this,nor even received any consequences for blatantly violating it that Israel isn’t bound to it either…especially since the Israeli/Egyptian blockade is a direct result of Iran illegally shipping arms to Hamas and Hamas subsequently using them against Israel’s civilians.

International law when it comes to Israel appears to be a standard applied to Israel when it is convenient to her enemies, and ignored when it is not.

It seems what the author of the article does is to say that the San Remo Manual does not expressly state you can “blocade” a non-state entity, and then leap to the conclusion that if the Manual does not expressly state you can do it, them you can’t; and that because several articles expressly use the term “beligerent states”, this means that “states” are meant throughout.

However, the authour should be aware that this is not how interpretation works. The authors of the Manual are presumed to be using the term “states” when they mean “states” and where they deliberately avoid using the term “states”, they mean something more inclusive.

Let’s examine the provisions that the author of the article is basing his analysis on. The author claims that the Manual uses “states” in article 10, and thus only states must be included where interpreting who can be blockaded. Article 10 states as follows:

10. Subject to other applicable rules of the law of armed conflict at sea contained in this document or elsewhere, hostile actions by naval forces may be conducted in, on or over:

(a) the territorial sea and internal waters, the land territories, the exclusive economic zone and continental shelf and, where applicable, the archipelagic waters, of belligerent States;
(b) the high seas; and
(c) subject to paragraphs 34 and 35, the exclusive economic zone and the continental shelf of neutral States.

[Emphasis added]

The author appears to be claiming that this means only “beligerent States” may be blockaded. Yet there is nothing to support that contention. Indeed, the exact opposite appears to be true. In the relevant article concerning “blockade”, the authors of the Manual are careful not to use the term “belligerent States“:

Quote:

Blockade

93. A blockade shall be declared and notified to all belligerents and neutral States.

[Emphasis added]

Please note the lack of qualifier “States” after the term ‘belligerent[s]”

The natural reading of this is that there can exist “belligerents” who are not “belligerent States“, and who may be notified (and thus subject) to blockade. That exactly fits Gaza.

6.02.2010
at 4:55 pm EST Malthus

Kevin,

Your point on the third Geneva Convention is well taken as a matter of treaty law between high contracting parties. All I stated is that some scholars (one with which the Israeli government is particularly familiar) argue that “armed forces” means those regular forces that satisfy four traditional characteristics of state armed forces. They take them to be requirements of privileged belligerent status. The article you cited offers a somewhat incomplete review of relevant authorities, in my humble opinion.

Putting that issue to one side, the article you linked also makes clear that belligerent or organized armed group status in non-international armed conflict does not necessarily elevate dissident forces to “sovereign equal” status for purposes of having the full rights of a belligerent state. It certainly subjects them to the same duties. No treaty of which I am aware establishes a principle of sovereign equal status. I would be shocked to find such a principle supported by state practice. What is the Miller Center’s authority for this?

6.02.2010
at 5:29 pm EST John C. Dehn

“I think the general consensus — including the longstanding US position — is that regular combatants do not have to comply with the article 4(2) requirements” (Kevin)

The Bush administration authored a DOJ opinion (Yoo) and a longer and more detailed State Department opinion (Bellinger) to claim that forces of the Afghan army under the Taliban were not lawful combatants and were not entitled to the status of POWs because they did not meet the “four part test” of 4(2). The paper you site is one of several sources that correct these opinions.

Unincorporated militia operating independently of the main armed forces do have to meet the four part test. Militia incorporated into the regular army are automatically covered.

The original text of Article 4 apparently applied the four part test to all forces, but that was changed after the Russians pointed out that, as the pages you cite in your post note, that position would contradict the Hague Agreements of 1907.

However, as this applies to Hamas, it is my understanding that even if you grant the Palestinians status as belligerents, the regular armed forces fall under the control of Abbas. Hammas in Gaza could at most mount an unincorporated militia, so the four part test would apply to them.

6.02.2010
at 5:56 pm EST Howard Gilbert

I am not a lawyer – thank god – you can file away a point until it is dull. What is a layman to make of statements from the UN Human Rights council that condemned the Israeli action and has repeatedly called for the lifting of the blockade of Gaza and has characterized the entire treatment of the Gaza strip as a case of collective punishment? How do international bodies weigh in any of these calculations?

In as much as the International Criminal Court in the Hague has been ignored by the Israeli government regarding the construction of that barrier between themselves and the West Bank, does any of this discussion matter at all?

Also as a layman, none of the points above seem to mention the distance at which the boarding took place. I don’t understand why the Israeli boats didn’t wait until they had less dubious distances – 12 or 24 miles. Didn’t Libya also try to extend it’s territorial waters to 200 miles many decades ago. It almost suggests that Israelis may be trying to pull a similar stunt when they built the wall beyond their own borders with the West Bank. Does any suspect that they are trying to establish a precedent?

Response…This central issue of non-state parties negating the ability of a conflict to be anything other than NIAC seems a real failing of International Law as a whole.

The way the Geneva Conventions and so many other such documents are structured they put actual Nations at serious, and in my opinion, unnecessary legal risks just to defend themselves.

In looking at the US armed conflict against Al Qaeda and their related operatives, we are forced to classify the conflict as NIAC even though we are actively engaging them in multiple nations simultaneously. That seems quite an insane definition to have to submit to.

Israel ends up in a similar situation. They no longer occupy Gaza but the Palestinians are not allowed (or don’t yet want) to declare Gaza sovereign territory, even if an incomplete one. This stacks the deck against Israel when it comes to how everyone can interpret international law, stacked quite deliberately against Israel (and the US in its Al Qaeda conflict).

Considering there are already established paths towards getting aid into Gaza this stunt by these activists is a political and physical attempt to bring the blockade to an end. And while the validity of such a blockade can be questioned due to the failings of how international law is written, unfettered imports to Gaza, given Hamas’ actions, is unreasonable.

It leaves Israel in a position where it must defend itself even in the face of murky laws.

Thiis act by these activists is an attempt to use that murkiness to their advantage, giving the UN more fodder to pile onto Israel at every opportunity.

Considering the UN’s response to the North Korean sinking of a South Korean naval ship compared to their response to this incident one would have thought the actions of the two events reversed.

Interesting article overall.

6.02.2010
at 6:48 pm EST CharlesD

In as much as the International Criminal Court in the Hague has been ignored by the Israeli government regarding the construction of that barrier between themselves and the West Bank, does any of this discussion matter at all?

International Court of Justice.
(It’s the one next door, the one that has existed since 1945 and that speaks to the rights and duties of states, as opposed to the ICC which only concerns itself with criminal law as applied to individuals.)

6.02.2010
at 7:04 pm EST Martin Holterman

Kevin,

Regarding POW status that would still be dependent upon meeting the requirements as spelled out in Article 4(2) of the 3rd Geneva Conventions, would it not in the case of Hamas?

Since Palestine is not a sovereign state at this point and Hamas not its recognized governing body how do they attain privilaged combatant status by simply being a belligerant party?

One of my biggest issues with the GCs is their failure to clarify things. For example, in the Additional Protocols I (which I know the US is not a party to) it states regarding a Mercenary in an :
Art 47. Mercenaries

1. A mercenary shall not have the right to be a combatant or a prisoner of war.

So my question is: What is he then?

And the above only applies to IACs. There is no Article defining a Mercenary in Protocols II dealing with NIACs.

Does that mean a Mercenary cannot be a participant in a NIAC?

And what definition would even apply to Hamas (whether in the main GCs or the Additional Protocols)?

All of this just makes it more and more difficult to define what clear course of actions a Nation State has when faced with a non-Nation State enemy.

6.02.2010
at 7:14 pm EST CharlesD

The San Remo Manual is not law but rather is an opinion on what the law is, prepared by a group of lawyers. (“The San Remo Manual was prepared during the period 1988-1994 by a group of legal and naval experts participating in their personal capacity in a series of Round Tables convened by the International Institute of Humanitarian Law. The purpose of the Manual is to provide a contemporary restatement of international law applicable to armed conflicts at sea. The Manual includes a few provisions which might be considered progressive developments in the law but most of its provisions are considered to state the law which is currently applicable.”)

But the section cited by the Israeli government, para. 67(a) seems of little aid in the situation.

“67. Merchant vessels flying the flag of neutral States may not be attacked unless they:

(a) are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture[.]”

The use of the present tense “breaching” would seem to require that the Flotilla have reached the boundaries of the blockade, i.e., to have left international waters, before Israel would have been entitled to attack, assuming for sake of discussion’s brevity that the blockade itself is lawful.

1. Any person commits an offence if that person unlawfully and intentionally:

(a) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or
…

(g) injures or kills any person, in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (f).

2. Any person also commits an offence if that person:

(a) attempts to commit any of the offences set forth in paragraph 1; or

(b) abets the commission of any of the offences set forth in paragraph 1 perpetrated by any person or is otherwise an accomplice of a person who commits such an offence; …

<<<

Section 1(a) and (g) and section 2(b) would seem to sweep in all Israelis involved from the participants in the naval raiding force to the highest level of Israeli government.

Other sections of the convention require the Israeli government to promptly and thoroughly investigate and to allow extradition for criminal prosecution of all participants to the States whose flags flew over Flotilla ships, e.g., Turkey. Also included are provisions for binding arbitration of extradition disagreements and the right of a Flag State to invoke the processes of the International Criminal Court if there is no agreement on an arbitrator within six months.

While the legality of the Gaza blockade is certainly also worthy of discussion, the case for the illegality of the Israeli attack on the Flotilla in international waters seems clear-cut regardless of the blockade’s legality or illegality. The Flotilla ships were not in the area blockaded.

On the right of the Israeli troops right of self-defense, it seems to me that they appear to stand in a situation analogous to a burglar who is fired upon by the home’s owner. I.e., they appear to have been engaged in a criminal trespass. Does the burglar have a right of self-defense, entitling him to shoot and kill the owner, then expect to walk away without being subject to a homicide prosecution? At least under the American criminal justice system, the answer is clearly “no.”

6.02.2010
at 7:36 pm EST Paul E. Merrell, J.D.

1. There is no indication in the San Remo Manual that its rule in 67(a) applies only to international armed conflict. On the contrary, there are sections in the Manual that specifically apply only to international armed conflict (e.g., section 118), and the clear implication is that other sections apply to all conflict, whether international or non-international. Expressio unius est exclusio alterius.

2. A state of belligerence in the 19th century required an international armed conflict. It is far from clear that that is the case today. The decisions of NATO and the Security Council after the al Qaeda attack on the US on 9/11/01 appear to recognize the right to view the US as engaged in state of belligerence with al Qaeda after those attacks notwithstanding the lack of a state actor facing the US. Hamas is similarly a terrorist organization that has repeatedly attacked Israel. Alternatively, it is possible that the aftermath of the 9/11 attacks should be seen as indicating a new rule that views armed conflict between states and international terrorist organizations like al Qaeda and Hamas as international armed conflict. In that case, the conflict between Israel and Hamas is international.

3. The citation to Green is more than misleading. If one proceeds to the next paragraph, one discoveres that “[r]egardless of the normal position under customary law, states may declare that a particular non-international conflict has reached a state that warrants treating the conflict, in whole or in part, according to the normal laws of war.” There can be little doubt that the many opponents of Israel who have proclaimed (incorrectly) that the laws of belligerent occupation apply to Gaza or that have claimed (incorrectly) Israel’s economic sanctions and maritime blockage constitute “collective punishment” have done just that. Who here is trying to have its cake and eat it too?

4. It is far from clear that the “state of belligerence” has any significance here at all. The whole point of the armed conflict language in the Geneva Conventions is that states of war are no longer applicable to the application of the rules of war, and that, instead, the in fact existence of a state of armed conflict makes the rules apply rather than a formal declaration of war. There is, in fact, a state of armed conflict between Israel and Hamas, irrespective of any declarations (although it might be added that Hamas is quite explicit in claiming that a state of war exists between it and Israel, or, in its terminology, the “Zionist occupation regime.”)

5. The premise of your claim is backwards. The Lotus principle establishes that states may do all which is not forbidden to them, not that everything is forbidden unless permitted. The question is not whether there is a provision in a treaty or custom permitting Israel to blockade Hamas ports, the question is whether there is such a provision prohibiting Israel from doing so. Quick answer: there doesn’t appear to be one.

5. In Resolution 1373, the Security Council not only authorized but required all states, by authority of Chapter VII, to “Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by … eliminating the supply of weapons to terrorists.” Arguably this Security Council Resolution requires states to block the passage of support to Hamas, a terrorist organization. (Incidentally, Hamas has already declared that it will not allow the humanitarian aid in until Hamas prisoners are released; that is, it has already hijacked the aid in support of itself.). Certainly, it is relevant to determining whether there is authority to blockade the ports controlled by Hamas.

6. Even without Security Council Resolution 1373, the fact that Hamas uses the cargo for military use arguably makes it contraband, susceptible to seizure as prize under customary law, even without the existence of a state of maritime blockade.

7. Additionally, the more general self-defense rationale invoked by Harold Koh (thank you Ken Anderson) in favor of US targeted strikes on al Qaeda terrorists would also seem to apply here and give Israel the right to strike against Hamas not only in international waters but in neutral territory.

8. Even if creating and enforcing a maritime blockade required a state of international armed conflict, this purported armed conflict does not require acknowledgement of the mythical Israeli occupation of Gaza; the armed conflict could exist because there is, in fact, a state of Palestine that controls and is sovereign in Gaza (it is relevant here that the state of Palestine is recognized by most countries in the world and purports to be bound by the Geneva Conventions and the laws of war), or because there is an international armed conflict between Israel and Syria, where Hamas headquarters are located (or, perhaps, due to conflict between Israel and an international terrorist organization). What is more interesting is the contradictory position of organizations like Amnesty and the rest of the anti-Israel crowd who simultaneously claim that Israel occupies Gaza and there is no international armed conflict justifying a blockade. Again: Who here is trying to have its cake and eat it too?

6.02.2010
at 7:57 pm EST Avi Bell

Mr. Merrell (@ 7:36), you are suggesting that when the U.S. intercepted ships headed to Cuba during the Cuban Missile Crisis, they did so inside Cuban territorial waters? Because that is not my understanding. And I am very certain that Union warships intercepted ships outside the (then) 3-mile limit. In fact, they intercepted ships carrying contraband to Mexico, under the “continuous voyage” doctrine.

Alternatively, maybe your position is that Kennedy and Lincoln were international war criminals.

6.02.2010
at 8:31 pm EST wm13

“there is, in fact, a state of Palestine that controls and is sovereign in Gaza”

Wow, talk about having one’s cake and eating it too! The blockade is legal because Palestine is a state and thus the confilct with Hamas is international armed conflict. But we can still treat Hamas fighters as terrorists, not as the armed forces of a state (and thus privileged combatants), because… well, because.

I assume, as well, that Professor Bell is fine with the ICC accepting jurisdiction over the situation in Gaza. I thought the problem with such acceptance — which I oppose — was that Palestine isn’t a state…

The Lotus Principle, by the way, is the ultimate red herring. Gaza is not Israeli territory. If Israel can do anything it wants to Gaza that is not prohibited by international law, so can any other state. And that includes sending humanitarian aid — nothing in international law prohibits sending such aid. Does that mean Israel cannot stop aid being sent to Gaza? Of course not. But it does have to find positive authority in international law to do so; otherwise, stopping aid being sent by ship under another state’s flag is an act of war. So we are back where we started — what permits Israel to blockade Gaza? The absence of prohibition is not enough.

I don’t think your Lotus analysis works because the doctrine of non-liquet solves your paradox. Per Lotus, Israel can have its blockage because nothing prevents it. Per Lotus, Turkey can deliver aid because nothing prevents it. Clash of the two = non-liquet, a doctrine, by the way, acknowleged by the ICJ.

6.02.2010
at 9:46 pm EST New Stream Dream

I’m no lawyer but I know that the US Coast Guard routinely stops and boards vessels at sea that it suspects are carrying prohibited goods. And I would guess that if attacked by a mob wielding clubs and chains, they have a right to protect themselves.
Why turn oneself inside out trying to justify why this band of terrorist supporters should be allowed to resupply the terrorists? Once the blockade is broken with ‘humanitarian’ goods, weapons and missiles will follow. Let Israel defend itself like every nation on Earth would do.

6.02.2010
at 9:53 pm EST DaMav

a) Kevin, I don’t think you read what I wrote. I didn’t say there is a state of Palestine – though I am sympathetic to the view that Gaza is the state of Palestine – I said that there are many theories that would support there being an international armed conflict aside from the mythical Israeli occupation of Gaza.

Incidentally, even if there is a state of Palestine, that doesn’t make Hamas, the organization headquartered in Damascus and dispatching terrorists to murder Jews, the “armed forces” of the state. Does the “state of Palestine” claim Hamas terrorists are its “armed forces”? Is the “state” going to acknowledge command responsibility over them? Don’t hold your breath. It is also far from clear that the Palestinian Authority (which does not, in fact, rule Gaza) is the government of the “state of Palestine.” And if you read its peculiar statement that “Palestine” accepted the Rome Treaty you’ll see that it seems an attempt to avoid accepting the jurisdiction of the ICC except for purposes of prosecuting Israelis. Now, it might be that it will get away with such a trick — the PLO simultaneously claims to be stateless and the government of the state of Palestine — or it might not.

But back to the point: it is impossible to claim consistently that Israel occupies Gaza and it has no right to impose a blockade (as Amnesty claims) because there is no international armed conflict. It is perfectly possible to observe that Israel does not occupy Gaza and still claim that the conflict is international.

b) I’m not aware of anyone of relevance who disputes the right to send “humanitarian aid.” Perhaps you can direct me to the Israeli statement to this effect? Israel transfers humanitarian aid to Gaza, and offered to transfer the humanitarian aid aboard the ships to Gaza through the port of Ashdod. The flotilla claimed the right to bring its cargo to Hamas directly, which is almost certainly forbidden by SC Resolution 1373, irrespective of any Israeli maritime blockade.

c) Your whole discussion is a red herring, to distract from the fact that your claim that the rules of maritime armed conflict forbid blockades in non-international conflict has no support. You insist that precedent to the contrary is irrelevant, but this is not proof of the accuracy of your claim. I appreciate the cleverness of the rhetorical tactic of trying to establish your point by fiat and force everyone else to prove the negative. But I refuse to take the bait. Again: what is the proof that maritime blockades are forbidden in non-international armed conflicts? What is the treaty or custom?

I notice that you have no answer to my points 1, 2, 3, 4, 5 (second time – apologies for the misnumbering), 6, or 7. I appreciate that you appear not to have great respect for me, but perhaps you can respond directly to these issues.

PS. Kevin, you also appear to have conflated me with an agent of the state of Israel. Where exactly have I ever claimed “we can still treat Hamas fighters as terrorists, not as the armed forces of a state (and thus privileged combatants)”? Do you treat all people of a certain ethnic descent who disagree with your animus towards Israel as agents of Israel or am I just the lucky one?

6.02.2010
at 10:30 pm EST Avi Bell

@WM13, the treaty I discuss was not drafted until 1988. The Civil War and the Cuban Missile Crisis both predated that treaty.

6.02.2010
at 10:32 pm EST Paul E. Merrell, J.D.

OK, if Gaza is not a state and the conflict with Israel is not an IAC, then the controlling legal documents are the agreements between Israel and the Palestinian Authority, specifically the Gaza-Jericho Agreement. See in particular Article XI of Annex 1, Security Along the Coastline and in the Sea of Gaza, which defines certain “Maritime Activity Zones” and makes clear that

Foreign vessels entering Zone L will not approach closer than 12 nautical miles from the coast except as regards activities covered in paragraph 4 below.

Paragraph 4 then reads:

As part of Israel’s responsibilities for safety and security within the three Maritime Activity Zones, Israel Navy vessels may sail throughout these zones, as necessary and without limitations, and may take any measures necessary against vessels suspected of being used for terrorist activities or for smuggling arms, ammunition, drugs, goods, or for any other illegal activity. The Palestinian Police will be notified of such actions, and the ensuing procedures will be coordinated through the Maritime Coordination and Cooperation Center.

So the PA agreed that Israel has the right to control the coast of Gaza and that there is therefore no right of neutral ship or any other ships to enter into these waters without the express permission of Israel.

Clearly, then, the Gaza Flotilla had no right to enter the waters off of Gaza or to dock in Gaza. That Israel stopped them before they got within 20 nautical miles was a perfectly legal act of preemption, since the ship captains made quite clear in communications with the Israeli Navy that their destination was Gaza, despite being warned that they would not be allowed to proceed.

6.03.2010
at 12:13 am EST Alex Safian

The IDF Military Advocate General is very clear about their position regarding the, uh, mythical legal status of Gaza: “The region of Judea and Samaria is considered by international law as territory subject to belligerent occupation.”

I was going to respond substantively to Professor Bell, but then he wrote this:

Do you treat all people of a certain ethnic descent who disagree with your animus towards Israel as agents of Israel or am I just the lucky one?

I’m not sure what’s worse, the near-accusation of anti-semitism or the description — typical of Israel’s uncritical apologists — of those who criticize Israel’s behavior as having an “animus toward Israel.” Either way, this person of the same ethnic descent is not wasting any more time responding to Professor Bell.

Where exactly have I ever claimed “we can still treat Hamas fighters as terrorists, not as the armed forces of a state (and thus privileged combatants)”?

See this document, where Professor Bell refers to “Palestinian terrorists” in Gaza more than 10 times. That’s a strange description to use if one is talking about the legitimate armed forces of a state…

… apart from the issue of the legitimacy of a blockade in NIAC, it seems to me that the blockade … was enforced outside the blockade and in advance of the blockade itself by units “anticipating” on the High Seas the blocking forces. In such a situation the detachment of forces to intercept in advance the convoy doesn’t seem to be consistent with the practice of blockades. This moves the question of the legitimacy of the raid one step backwards:
a) has the convoy been intecepted within a blockade?
b) was such a blockade legitimate?

6.03.2010
at 2:55 am EST Jean Paul Pierini

Response… Kevin,

I understand why you dont wish to respond to Avi Bell after his last comment but since his argument challenges what you argue for and since the matter is of intrinsic interest why not deal with his criticism anyway ? Pretend that someone else made the argument.

6.03.2010
at 3:09 am EST Zdenek

States still do recognize belligerence, although rarely. See examples in the wikipedia article on diplomatic recognition, and von Glahn’s book referred to there. Hugo Chavez proposed recognizing the Colombian rebels as belligerents a year or so ago; iirc commentary then noted that no state had recognized an insurgency in their own state as a belligerent in the last 50 years, although third parties had. I think in the Prize cases and elsewhere, the USA did explicitly recognize the CSA as a belligerent.
I think people should take Israel’s promises that it would allow aid delivery with grains of salt, as its restrictions are unpublished, capricious and ludicrous, and its record very bad. It once fought a war (1956) supposedly because of its rights against a blockade, the main material transported through the Straits of Tiran before 1956 being cement. Nowadays, the cement on the Rachel Corrie is supposedly military contraband that will be used for terrorism!

6.03.2010
at 3:59 am EST John K

Kevin,

I have 2 comments:

a) while you may or may not be purposely anti-Israel why do you focus on Israel in this context and in general (i’ve googled you and found plenty of anti-Israel rantings) and not write about all of the violations of international law committed by the folks over in Gaza, to wit,
1-firing rockets into Israel purposely targetting civilan non-combatants
2-racism – educating their children at summer “camps” to shoot Israelis teaching them all about glorious jihad and all about bomb belts to kill the jews
3-non-judicial execution of collaborators or fatah people (actually the reports are butchery and throwing fatah people off roofs)
4-torture – hamas jails are notorious

b) Frankly, the Israelis in my opinion were totally justified here. Can you imagine the flotilla challenging a Russian Naval blockade or a US one? My goodness the US just eliminated the #3 of Al Queida takuing along his wife and kids. If the Israelis do that they are instantly condemned.

I’m no Israeli apologist but this Israel bashing is getting a bit tired.

I’d like to see so much “concern” over…

the thousands of Tamil Tigers and civilians wiped out
Saudi Arabia depriving women the right to vote and drive
Russian kick azz of chechen rebels
Sub sharan nations massares of thousands
etc

This single minded obsession with Israel is wrong.

6.03.2010
at 5:35 am EST Raj

Kevin,

I may owe you an apology.

When I read the line “we can still treat Hamas fighters as terrorists, not as the armed forces of a state (and thus privileged combatants),” I focused on the words “we” and “treat.” By “treat” I thought you meant physical treatment (and I obviously don’t personally hold any Hamas terrorists in detention), and by “we” I thought you meant Israel (and agents).

But I now see that by “treat” you may have meant “intellectually treat.”

The “we” is a little harder to explain, but I’m ready to be charitable and believe that it was either a slip of the tongue or that the reason you referred to me in the plural is a belief that I am so persuasive that I have followers who instantly adopt all my intellectual positions. And I’m going to resist the temptation to believe that in characterizing me as an “uncritical apologist” you have reinforced my original impression of the statement.

So, Kevin, I am sorry for casting aspersions.

Now I’m really looking forward to seeing what a substantive response from you looks like.

Best,

Avi

6.03.2010
at 5:38 am EST Avi Bell

Maybe it is time to change the laws to apply the current situations where we have terror states (like the Hamas regime in Gaza) which conveniently shy away from declaring independence just because of they are not ready to be judged by the same standards as the rest of the western world.

6.03.2010
at 5:45 am EST Serra Turkoglu

Response…Why not answer Professor Bell? I think he raised some good points.

6.03.2010
at 5:53 am EST EricD

All this discussion assumes that Israel has any interest in IL except opportunistically. Israel is only place in the world were jurists argue that the Fourth Geneva Convention does not apply to the Occupied Palestinian Territories. Israeli jurists have been rebuked on this matter by the judges of the ICJ for their lack of professional integrity.

Israeli officials right now are claiming that Gaza isn’t occupied AND that ships sailing to Gaza are breaching its sovereign right to control entry to ITS territory. Israel forced people on the ships to sign statements that they agree to be deported after entering Israel (not Gaza) illegally. Square that!

Israel will argue three self-contradictory things about IL before breakfast, so the expectation that Israel will need a coherent argument is immaterial unless there is a court with a whip. Until then, Israel will argue that 1) it is a legal blockade, 2) Gaza is not occupied 3) Gaza is included in Israel’s sovereign territory 4) Israel has no responsibility to what happens in Gaza 5) Hamas rules Gaza 6) Hamas is just a terrorist organization

If you can make sense of all that you can teach IL at Tel Aviv University.

Apology accepted and appreciated. I will respond to your comments soon.

Evildoer,

Although I think Avi overstates the point when he talks about the “mythical” occupation, I think that it is anything but clear whether, as a matter of international law, Israel is currently (post-disengagement) occupying Gaza. It is a very close and very difficult question. I tend to think it’s not — and I doubt I can be accused of being soft on Israel.

When will the Palestinians stop using the strip as a launching pad for kassam rocket attacks?

Why should Israel lift the blocakde of terrorists?

Why no mention that the blockade has widespread international support?

Oh and why no mention that Egypt also imposes its own blockade as well?

The material would have been delivered had the flotilla followed protocol. The Israelis offered to transport the goods after inspection over a land route. The flotilla was warned to stay away at the beginning of their grand voyage and minutes before boarding. These “victims” brought the Israeli reaction on themselves. Knowingly assuming risk means I vote the flotilla participants were wrong.

6.03.2010
at 6:48 am EST Joel

Response…Would also appreciate a response to the person who posted about the French blockade of Algeria and Sri Lanka, clearly not IACs.

In an area still so murky that many concede they do not even have the answer, does it matter? I am not generally a positivist, but the effectiveness principle creates legitimacy. On that basis, seems to me the naval blockade gets legal recognition and the rules pertaining apply.

Israel has acted by the book. Most of the rest, in favor or not, comes down to one’s underlying beliefs over the entire dispute. There’s no right answer there either. Like in most traditional areas of international law, politics holds more sway.

With regard to this event, it seems proportionality is the more relevant topic.

Mr. Merrell (@10:32): Huh? I was talking about your citation of the San Remo manual, not the 1988 treaty. Are you suggesting that the Cuban blockade and the Civil War blockade were conducted wholly within the territorial waters of the blockaded state?
Quite honestly, I don’t think this is a difficult question. The use of the progressive tense (“breaching”) is slightly ambiguous, so obviously it must be interpreted by reference to actual custom and practice, which clearly does not support the contention that blockades must be conducted wholly within the territorial waters of the blockaded entity.

6.03.2010
at 9:20 am EST wm13

The argument rests on the point that the Palestinian territories is not a state and therefore:
“Article 3 acknowledges the right of self-defense under Article 51 of the UN Charter, but — as Marko Milanovic has pointed out — that right is an exception to the prohibition on the use of force in Article 2(4), which only operates between states. And numerous articles in the Manual refer specifically to “belligerent States” ”
In otherwords, the Palestinian territories is not a state and therefore, because it is a a non-state actor, it can not be blocaded.
However, this argument ends the entire Palestinian narartive at its core. The Palestinians have been granted a unique legal status in the international community that no other non-state actor in the history of the world has been granted. They have been granted the legal rights of high contracting parties, even though they are not a state–which is why the Palestinians have any claim whatsoever to their land being occupied and the settlements being illegal. So if you want to make the claim that Israel can not blocade the Palestinian territories because it is not a state, then there can be no legal argument that the Palestinian terrotories are occupied at all and that the settlements are illegal.

6.03.2010
at 9:51 am EST Dave13

“The London Declaration does not justify such a blockade, because it only applies to “war”– war being understood at the time as armed conflict between two states.”

This is actually more damning to the Palestinians than the Israelis if you accept this logic.

The geneva convention on the aquistion of land through war and people moving to that land only applies to states or “high contracting parties.” Israel claims that the land was acquired in a defensive war with Jordan and Egypt which is true. Jordan and Egypt subsequently gave up all rights to this land. As far as the “occupation” and “settlements” are concerned, the Israelis argue that the land is “terra nullus,” the legal term for land that does not belong to any state. The countries that believe the land is occupied and the Israeli towns are illegal, have bestowed on the Palestinian territories, the rights of a sovergn nation–a high contracting party–something never given in the history of the world. Without the Palestinian terrotories being given the rights of a soverign state, it could not make any claim whatsoever to being occupied or for the settlements being illegal.

6.03.2010
at 10:35 am EST Dave13

Kevin —

Your post is excellent and I’d just add a few points:

1. As to whether Israel is in an IAC with Hamas, I think it can argue in favor of that position without conceding that it occupies Gaza, because an IAC does not require that there be occupation. (Milanovic argues that the converse is also true, i.e., that an occupation does not require that there be an IAC.) By the way, the SC resolution that comes the closest to discussing the status of Gaza, 1860 from 2009, ducks the issue of Gaza’s status today by simply noting that it is an integral part of the occupied in 1967 and will be part of a Palestinian state. The problem for Israel is the language of CA2 and the reluctance of states to endorse the idea that an IAC can take place between a state and a non-state actor.

2. I think the absence of much state practice on blockades in NIACs doesn’t cut either way. Would states have denied Sri Lanka the right to blockade shipments of weapons to Tamil-controlled areas if the blockade otherwise complied with IHL? I doubt it.

3. The other key issue on the legality of the blockade is of course how it is conducted. Para. 13.74 of the UK Military Manual, relying on the San Remo Manual, makes clear that there is a proportionality test similar to the one in AP I. I think this test is the hardest one for the Israelis to show they have fulfilled.

6.03.2010
at 11:44 am EST Steve Ratner

Since the Palestinian Authority, as headed by Abbas, is the recognized governmental body of the Palestinian people what is the status of Hamas?

Since they maintain actual control over Gaza, why aren’t they primarily responsible for the well-being of the people in Gaza?

What is Hamas legally considered in the context of their control over Gaza? They seem to be in a similar situation as the Taliban were in Afghanistan in the late 1990s up until their ouster in late 2001, in that both controlled the land but were considered to have forcibly taken that control from the recognized government.

6.03.2010
at 12:22 pm EST CharlesD

To dispose of some bad but commonly seen tangential arguments, I suggest some study Israel’s actual positions. There is no dispute that the occupied territories are occupied, this has been Israel’s position since 1967, the only exception being Gaza now, where there is a real question. That the Fourth Geneva Convention only applies to occupations of territories of high contracting powers is an Israeli argument which was unanimously rejected in the ICJ wall decision as clearly not the intent of the convention. Additionally, Israel originally agreed with the ICJ and everyone else, that the Fourth Geneva Convention formally applied to the occupation, changing its position in November 1967.

6.03.2010
at 2:50 pm EST John K

I’m not sure how relevant it is to the discussion in the original post (which I found quite interesting, thanks), but it seems worth mentioning that Georgia from time to time has tried to enforce a blockade of Abkhazia, which has resulted in several run-ins at sea over the years.

If Israel is prohibited from blockading Gaza, does Israel have any legal means to stop weapons being transported to Gaza by sea? This is not a theoretical question, major efforts to bring weapons into Gaza are well documented. The legal arguments against Israel’s blockade could be of real-world interest, but only if this question is addressed.

Let me put it differently: If the people arguing against the blockade are intellectually serious, then they should be able to propose a reasonable alternative policy. “Sorry, you have to allow enemy forces to be freely supplied with weapons” is not a reasonable alternative policy. If they can’t propose one, then they’re just playing word games in an ivory tower.

This question was raised several times above, and ignored. If it’s ignored again, I’ll have my answer.

6.03.2010
at 4:50 pm EST Robert Gale

Fascinating discussion.

Coming to it as a lawyer but with no expertise in international law can I make 2 observations?

Firstly, the disagreement is hardly unexpected. Lawyers can disagree about anything and International law hardly has a reputation as the most concrete of disciplines.

Secondly, it seems pretty clear that no one here is arguing against their own interests. No problem with that either – lawyers are as entitled as anyone else to use their expertise to argue the point they believe in, especially if they are not representing a client.

But, that being so, can I gently point out that refusing to deal with a substantive point on the basis of being offended by what the other guy says is hardly consistent. Prof H believes and argues one thing. Prof B the other. The debate is the thing – you don’t have to get on. So let’s have the debate – we are all learning as we go on.

Professor Bell said: “Even if creating and enforcing a maritime blockade required a state of international armed conflict, this purported armed conflict does not require acknowledgement of the mythical Israeli occupation of Gaza; the armed conflict could exist because there is, in fact, a state of Palestine that controls and is sovereign in Gaza (it is relevant here that the state of Palestine is recognized by most countries in the world and purports to be bound by the Geneva Conventions and the laws of war), or because there is an international armed conflict between Israel and Syria, where Hamas headquarters are located (or, perhaps, due to conflict between Israel and an international terrorist organization).”I think its worth mentioning that most countries (the US, the UK etc etc.) do not recognize the State of Palestine as a sovereign state. Recognition of Palestine as a country is not recognition of the State of Palestine as a sovereign state. As far as I can tell, Israel does not recognize the Hamas government as the sovereign ruler of Gaza.

6.03.2010
at 6:08 pm EST AC Fels

This whole discussion, while interesting, must be taking place in some bizarre alternate reality.

It’s really absurd to say that that Gaza is not under belligerent occupation just because Israeli troops are only setting foot inside the walls that have been built around it whenever they want, in order to level apartments, houses, farms, businesses, factories, roads, bridges, power lines, reservoirs, pumping stations, wells, sewage networks, UNRWA installations, government buildings, or whatever else is left.

The only change since the withdrawal regarding Israel’s legal status therein is that Israel is no longer colonizing Gaze. It remains the position of the US Dept. of State – and if them, then surely everyone else – that Gaza is occupied. The only country that might dispute that it is still under occupation is Israel – note that the IDF MAG, as above, still describes its status as belligerent occupation. Some of the absurd claims here have even argued that Israel never acknowledged that it was ever occupied in the first place, which is nonsense.

It is not terra nullus, it belongs to the Palestinians, who have titles to the land and since the original partition of the colonial mandate were ascribed national rights to it under international law. Egypt never claimed the Gaza strip – along with the rest of the Arab League minus Trans Jordan they recognized the original intent to establish a new Arab state – but administered it as occupied territory. Jordan ceded their (illegal) claims to West Bank to the PLO in 1988. Palestinian rights to that territory have been reaffirmed over and over again in every relevant UNSC resolution since 242, up to and including 1515. Even Israel, for that matter, has on occasion acknowledged those rights. Belonging to someone it cannot belong to no one.

Israel cannot be in a state of war with an insurgent terrorist group like Hamas or an interim administrative unit like the PA: the sovereign entity in the absence of a state falls to the people, and the laws of warfare are quite clear about obligations and rights and rules of conflict pertaining to a territory under occupation.

6.03.2010
at 6:40 pm EST buermann

Buermann’s post is loaded with assertions, half of them true, half of them false. Now we will have to read a whole bunch of tit-for-tat comments sorting it all out. How annoying.

In the meantime, does anyone have any response to my post about alternative courses of action for Israel?

6.03.2010
at 7:41 pm EST Robert Gale

b) I’m not aware of anyone of relevance who disputes the right to send “humanitarian aid.” Perhaps you can direct me to the Israeli statement to this effect? Israel transfers humanitarian aid to Gaza, and offered to transfer the humanitarian aid aboard the ships to Gaza through the port of Ashdod.

Unfortunately for Bell, this is simply not true. Israel does not let humanitarian aid pass through. No fishing poles, for example, or seeds. Certainly, check for weapons. What we see here, of course, is interested parties endlessly parsing what should be obvious and agreed-upon terms like “occupation” and “humanitarian”. Iow, if one party gets to unilaterally decide what these words mean, then it’s a pretty safe bet that they can “prove” that their actions are legal/illegal.

6.03.2010
at 9:05 pm EST ScentOfViolets

If Israel is prohibited from blockading Gaza, does Israel have any legal means to stop weapons being transported to Gaza by sea? This is not a theoretical question, major efforts to bring weapons into Gaza are well documented. The legal arguments against Israel’s blockade could be of real-world interest, but only if this question is addressed.

If I recall correctly, one proposal has the UN being the oversight authority. Strangely enough, Israel does not want such oversight. From this stance it is reasonable to conclude that Israel is concerned about more than weapons coming into the occupied areas . . . unless anyone wants to argue that UN officials would actively collude with Hamas to introduce weapons into Gaza?

6.03.2010
at 9:11 pm EST ScentOfViolets

A number of commenters have offered the French blockade of Algiers between 1827-1829 as an example of a permissible blockade in NIAC. That example does not actually work, because French rule over Algeria did not begin until 1830. Prior to that time, Algiers was part of the Barbary States. The blockade was thus a traditional blockade in international armed conflict, an essential part of France wresting Algiers away from the Barbary States.

Unsurprisingly, KJH refuses to deal with the undesirable outcome of his legal interpretation. I totally agree with Robert Gale that any legal analysis which ignores its actual consequences should not be taken seriously.

A quick aside regarding the Israeli supreme court controversial decision. First, it is better (me think) to link to the full English translation of the decision than to some 3rd party’s interpretation:

But more importantly, it seems to me that the following claim made by KJH is most bizzare:
“… although the Israeli Supreme Court held — controversially — in the Targeted Killings case that armed conflict between an occupying power and a rebel group is international, Israel’s official position is that it is not currently occupying Gaza.”
Here is a short citation from paragraph 18 of Barak’s opinion:
“This law [of IAC] includes the laws of belligerent occupation. However, it is not restricted only to them. This law applies in any case of an armed conflict of international character – in other words, one that crosses the borders of the state – whether or not the place in which the armed conflict occurs is subject to belligerent occupation. ”

6.04.2010
at 12:51 am EST Yaniv

Kevin, sources I saw indicated that the French Navy also blockaded Algeria during the 1950s. See, e.g., “The French Navy and the Algerian War,” by Bernard Estival (available through Google Books as Chapter 3 of “France and the Algerian War, 1954-62″) which describes a “rigorous coastal blockade” that “required the monitoring of commercial fishing and shipping vessels along 1500 kilometers of coastline.” I don’t know anything about this operation besides what Google reveals, but it certainly sounds like a blockade in the sense we’re talking about.

6.04.2010
at 1:59 am EST matth

On the lawfulness, or not, of a blockade during a NIAC – states certainly have the ability to prevent the transport of weapons to a rebel group in their territory. However, unless there is sufficient evidence of state practice to support the right to blockade in a NIAC (and I don’t think there is) they can do so ONLY within the limits of their territorial sea, to which their sovereignty extends.

The point of a blockade in IACs is precisely that it allows belligerent states to do something that they otherwise wouldn’t be able to do – to interdict ships belonging to third states on the high seas.

The obvious problem with Israel and Hamas is of course that Israel is not the sovereign of Gaza, and therefore wouldn’t even have the right that would normally apply in NIACs to interdict ships entering the territorial sea, because the territorial sea of Gaza is not Israel’s to rule.

At any rate, please note the implication of saying that parties to a NIAC have the right in international law to impose a blockade: that would mean that not only states, but also the rebels, would have such a right, as the law of armed conflict is based on equality between the parties. In other words, if Israel would have the right to impose a blockade against Gaza on the high seas, then so would Hamas have the (theoretical) right to blockade Israel, and stop and search American vessels, or what have you.

6.04.2010
at 3:13 am EST Marko Milanovic

Scent of Violets writes that instead of blockade, Israel has the option of asking the UN to prevent weapons from arriving in Gaza. Good idea.

But a problem with this is that this has already been tried, resulting in massive failure. The UN is in charge of preventing the re-arming of Hezbollah in southern Lebanon after the second Lebanon war. The result has been massive re-arming of Hezbollah. This is well documented.

Nice try, but no dice. Any other suggestions? It is more and more looking like this discussion is just a game, proposing cute legal theories that would require a country to give up its right to self defense. Shame, shame.

I looked at the article, it is an Israeli proposal that has come about in response to the uproar over the blockade-running incident.

Thanks for the constructive comment.

6.04.2010
at 10:23 am EST Robert Gale

Marko,

Interesting comments.

I think that you are perhaps correct in the last observation, but not the first.

Yes, the Civil War case suggests that the price of expecting international cooperation with a state of blocakade is recognition of a status of belligerence. That means that Hamas would have the rights and duties of a belligerent by virtue of Israel’s declaration of a maritime blockade. But for reasons stated above, I am no longer certain this is true. The law focuses these days, I think, on the fact of armed conflict rather than the status of belligerence. Incidentally, even if Hamas were to declare a maritime blockade, it would be unable to meet the legal requirement of “effectiveness” and thus would not be legally entitled to stop and search etc. So even if Israel is recognizing Hamas’ belligerent status, it’s not clear there’s much danger there. (Of course, additionally, under the rules of armed conflict, Israel has the right to sink Hamas ships on sight.)

As for the first point, I think it is question-begging. There is a recognized right of blockade in armed conflict. There is no custom suggesting this right is limited to IAC. Such as they are, the documents, limited practice, etc. appear to show the opposite. The rules of blockade emerge from a time when there was no terminology of IAC or NIAC: there was only war. The terminology of AC was meant to expand rather than contract the cases where the rules of war applied, and even in the old days, it was apparently possible to have a NIAC that had belligerents. It is true that if we begin with the assumption that blockade is limited to IAC, it may wrongful to stop ships on the high seas in the absence of IAC. But it is far from clear from me why we should begin with that assumption. If blockade means what I think it means, the right to stop and board ships in international waters is explicitly preserved by article 9 of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation as well as the customs of war.

One last point regarding the question of interdicting ships in Gaza’s territorial waters: those who (incorrectly) claim that Israel occupies Gaza would have to accept an Israeli right to interdict ships in those waters on the basis of Israeli control.

Avi

6.04.2010
at 11:04 am EST Avi Bell

One more old non-international blockade: the American Revolutionary War (Britain blockaded the colonies).

6.04.2010
at 11:10 am EST Avi Bell

Hi Avi,

Thanks for the comments. This is all getting rather hectic – a discussion is also going on in a more recent thread. I agree, of course, that it doesn’t cost much as a matter of policy to concede that Hamas has the right to operate a blockade, because it could never meet the requirement of effectiveness. But it is OTHER conflicts that I am concerned about, and simply can’t imagine that third states would accept the right of a non-state actor to blockade their shipping.

The reason why we should start from the proposition that a blockade is limited to an IAC in absence of state practice to the contrary is that it is IAC, not IAC and NIAC combined, which is a replacement for the previously relevant concept of ‘war’, which was a completely different category from a modern NIAC, but it different from an IAC only in the lack for requiring an animus belligerendi, and rendering the concept completely factual. Most importantly, a blockade is there primarily to regulate neutral shipping, and the rights of neutral states. In other words, it is the sovereignty of Turkey that is is implicated in the interdiciton of the ship on the high seas, and neutrality is still a concept relevant only in IACs.

Finally, I agree on the need for consistency re occupation point. Those NGOs etc who have argued that Israel occupies Gaza need to concede that Israel would have the authority to control shipping in Gaza’s territorial waters (but NOT the high seas!), while those who argued that the conflict is an IAC have to concede the legality of the blockade in principle. But, of course, the need for consistency applies to Israel as well.

6.04.2010
at 11:21 am EST Marko Milanovic

The blockade, as detailed in the Goldstone report, is collective punishment. You cannot justify the near starvation and economic ruin of Gaza’s 1.5 million residents; rockets aren’t powered by rice and wheat. Whether or not Israel is allowed to blockade Gaza is moot, the manner of the blockade alone violates any rational norm of proportionality. I fear that the Israeli actions in Gaza have done nothing but galvanize the population against them.
And why are people bringing up examples from before the passage of all relevant international law?

6.04.2010
at 11:39 am EST Shudderbug

Marko, you’re right, this hectic. I’m double-posting in order to move this to the new thread:

I don’t think you are right about IAC replacing war. I think the crux of the Civil War discussion above is that a civil war could become a “war” as long as the state was willing to accept the “belligerent” status of the rebels. The point then, is that IAC was the usual but not exclusive case of war. War is broader, not narrower, than IAC.

Additionally, modern law of war has become somewhat modular, with some arguing for mixed status conflicts, where some but not all IAC rules apply to some conflicts. Regardless of whether you accept this legal conclusion, I think this reinforces my point. Not only is war broader than IAC, AC is broader than war. To the degree we have any evidence, blockade is a law of AC, not IAC.

6.04.2010
at 11:50 am EST Avi Bell

“Those NGOs etc who have argued that Israel occupies Gaza need to concede that Israel would have the authority to control shipping in Gaza’s territorial waters”

I don’t know of anyone that has argued that Israel doesn’t have the authority to impose an arms embargo and block military shipments into the occupied territory, and to inspect and confiscate cargo. In so far as they’re responsible for public order in the occupied territory they may even have an obligation to do so. Amnesty, HRW, etc.s’ complaints have been about the creation of a humanitarian crisis, the collective punishment, the obstruction of trade.

The violation here is the blockade, not an arms embargo. The fabric, chocolate, seeds, livestock, cement, etc..

6.04.2010
at 11:53 am EST buermann

Scent of Violetswrites that instead of blockade, Israel has the option of asking the UN to prevent weapons from arriving in Gaza. Good idea.

No, I did not write that. I stated that there has been a proposal put forth that Israel maintain the blockade, but that the UN has the final say on what is permitted in and what is not. Thus a blockade to prevent arms from being moved into Gaza (a fairly reasonable proposition) would be maintained, yet at the same time humanitarian aid would be delivered.
As I wrote earlier, Israel is very definitely against this idea, which tells you that they really are putting up a blockade against humane aid as well. Thus, the blockade is definitely illegal even by the documents so far quoted.

But a problem with this is that this has already been tried, resulting in massive failure. The UN is in charge of preventing the re-arming of Hezbollah in southern Lebanon after the second Lebanon war. The result has been massive re-arming of Hezbollah. This is well documented.

If this is well-documented, could you give a cite showing Israel’s blockade of (southern) Lebanon? I can’t find any references to this, or to the UN being the final arbiter of what passed through the Israeli-maintained blockade.

6.04.2010
at 1:12 pm EST ScentOfViolets

It is not totally clear intellectually (like many have said-mainly because people won’t agree on the status of the Gaza, Palestinians or Hamas, or on the relative impact of the blockade or embargo), there seems to be some precedent (like has been noted here) for what is happening. Hamas is not helping itself by acting as a terrorist organization which gives it “international pariah” status and so it forgoes many international protections and rights it would otherwise have. And, of course, people argue about whether it is a terrorist organization as well (as has been noted).

Since the salient facts are in dispute, this makes applying current law difficult (if not impossible). I see it bandied about a bit on the blog, and it seems logical to me, regarding the so called Lotus Principle, “sovereign states may act in any way they wish so long as they do not contravene an explicit prohibition”. That there is a particular name for it in international law doesn’t mean it isn’t just a logical reality, if there is no specific applicable law prohibiting an action, the default position is it is not illegal, it is outside the law, or extra-legal, or however you wish to phrase it.

The fact of lack of consensus on the situation re: the Gaza embargo/blockade is substantial and means, in effect, no applicable Int’l law is explicitly prohibiting the action.

Deferring to those with the greatest stake in the situation, and who are the participants, Israel and Hamas, seems to be reasonable—and the international community staying out of it entirely (with no clear authority to intervene).

One last point regarding the question of interdicting ships in Gaza’s territorial waters: those who (incorrectly) claim that Israel occupies Gaza would have to accept an Israeli right to interdict ships in those waters on the basis of Israeli control.

Can I call them or can I call them? See my earlier comments on this subject: When you see people who are more than willing to parse the commonly accepted definition of words like ‘blockade’ and ‘humanitarian’, you can be pretty sure that they aren’t really arguing in good faith. It’s more of a “If you can’t make me say I’m wrong I win” sort of ploy.

6.04.2010
at 1:25 pm EST ScentOfViolets

“Whiskey” asked this ,”I, too, am no specialist, but how was the Cuban Missile Crisis an IAC (particularly the “A” part)?”, I too share this curiosity….

Also, I don’t see much discussion of whether this is an embargo that Israel is enforcing or merely a blockade, and distinctions to be made…is it both?

The fact of lack of consensus on the situation re: the Gaza embargo/blockade is substantial and means, in effect, no applicable Int’l law is explicitly prohibiting the action.

This is incorrect. In fact, it is an everyday occurrence for agents to be enjoined against specific activities until the legality of those activities has been determined. There is a significant difference between no law being applicable in a given circumstance and circumstances whose legality is not known.

6.04.2010
at 2:51 pm EST ScentOfViolets

” In fact, it is an everyday occurrence for agents to be enjoined against specific activities until the legality of those activities has been determined.”

Interesting. Well, of course if that is true in this case, who would be the authority to enjoin here, and since the facts and status of the parties and the situation are in dispute, who would hold the “grand jury” to make such preliminary decisions?

I think if you explore those situations where “enjoined parties await the status of their legality” you come back to what I was saying in that there is no, in effect, “Int’l law applicable”.

Because of the status debate (among other facts not agreed/established–and no where to establish them) what you say has no practical application here. Many of the issues are political, for example those in support of Hamas confer State status on Hamas, those in agreement with Israel may agree Gaza is just an area occupied by terrorists, etc.

Of course, Israeli and Hamas internal law may act upon and enjoin/injunction itself.

Turkey (and anyone) is butting in where it has no clear legal authority to do so. There is no clear legal explicit authority stating what Israel is doing is illegal. And, if it were, nothing states Turkey is to play the role they are playing in the conflict.

” In fact, it is an everyday occurrence for agents to be enjoined against specific activities until the legality of those activities has been determined.”

Interesting. Well, of course if that is true in this case, who would be the authority to enjoin here, and since the facts and status of the parties and the situation are in dispute, who would hold the “grand jury” to make such preliminary decisions?

I think if you explore those situations where “enjoined parties await the status of their legality” you come back to what I was saying in that there is no, in effect, “Int’l law applicable”.

But this position is nothing more than saying that there is no such thing as international law, period. All any country has to do in your hypothetical is dispute any law it deems inconvenient and voila! It’s actions are legal. Under your version, Israel could ‘legally’ board a ship of French registry ostensibly headed towards Australia and confiscate it’s cargo completely ‘legally’. That’s obviously not the case and this position is an untenable one.

6.04.2010
at 4:01 pm EST ScentOfViolets

” All any country has to do in your hypothetical is dispute any law it deems inconvenient and voila! ”

Was that my hypothetical? No applicable law does not mean no law at all.

I am merely asking you to point me to the authoritative body that will be “enjoining them until this legality is established”.

” All any country has to do in your hypothetical is dispute any law it deems inconvenient and voila! ”Was that my hypothetical? No applicable law does not mean no law at all

This doesn’t make any sense.

6.04.2010
at 6:05 pm EST ScentOfViolets

Very interesting thread.

buermann, please take note that if you post grossly obvious twisting of facts, (stating that the IDF considers Gaza as occupied territory and trying to support that with an article where the IDF considers Judea and Samaria -not Gaza-as occupied territories) does not make it easy to accept anything else you write.

Also, you wrote: “I don’t know of anyone that has argued that Israel doesn’t have the authority to impose an arms embargo and block military shipments into the occupied territory, and to inspect and confiscate cargo.”

Given the known attempts of Palestinian “militants” to smuggle arms on non-military ships (Karine A and others), do you also accept the Israel’s authority to block and inspect civilian vessels? (Can a drug smuggler come into your territory and not get checked by border security if he says he’s with a humanitarian organisation?)

Those who don’t disagree with Israel’s authority to check cargo going to Gaza, but disagree with what Israel allows to go through, must agree that Israel had the authority to stop the flotilla. You can then put up whatever legal protests you want as to who chooses what goes through once the ships are docked in Ashdod.

BTW, the “international waters” issue is a red herring. In maritime law, it is permissible to preempt an act. Once the flotilla had declared their intention to enter Gaza’s waters despite warnings not to, the actions permissible are the same as if they entered.

6.04.2010
at 9:17 pm EST Brian

Those who don’t disagree with Israel’s authority to check cargo going to Gaza, but disagree with what Israel allows to go through, must agree that Israel had the authority to stop the flotilla. You can then put up whatever legal protests you want as to who chooses what goes through once the ships are docked in Ashdod.

Sigh. The people who ‘disagree’ with what Israel lets past the blockade cite precisely this fact to show that the blockade is illegal. Since everyone for the nonce seems to be deferring to various Law of the Sea articles, let me – again – point out that they also expressly say that blockades which do not let humane aid pass through are not considered legal justification for stopping and inspecting vessels in international waters. Period. Full stop.

Should I consider by the way you phrased this objection – activists wanting the law enforced, how dare they! – that you really aren’t trying to persuade anyone and that in turn nothing will dissuade you from your position?

6.04.2010
at 9:48 pm EST ScentOfViolets

ScentsOfViolets, my point is that if your objection is not to the blockade per se, but to what gets through, then don’t throw the baby out with the bathwater.

You seem to be suggesting that if Gaza doesn’t get in everything that Hamas wants, then Israel has given up the authority that buermann has suggested to potentially stop arms coming in by sea.

By attacking the right to inspect rather than distribution, it seems that you may be more interested in denying Israel’s right to self-defence more than delivering humanitarian aid.

6.04.2010
at 10:45 pm EST Brian

You seem to be suggesting that if Gaza doesn’t get in everything that Hamas wants, then Israel has given up the authority that buermann has suggested to potentially stop arms coming in by sea.

Sigh. Please. You’re arguing in bad faith and both of us know it. I said, quite clearly and along with other people, that the bit of law that Israel wants to pin it’s claims of legality specifically states that the blockade must not deny humane aid from getting through. Period. No weaseling. Trying to say that people are going with ‘Gaza getting everything that Hamas wants’ as the definition of ‘humane aid’ is not only nasty, but insulting as well.

I do believe you owe me an apology, and if you can’t do that, or admit to what you’re doing here, I see no reason to continue wasting my time. And let me make it very clear here, it’s very much because of people like you that is large part of Israel suffering such a decline in it’s reputation amongst the international community. Not because anyone ‘hates Israel'; that ship has sailed long ago.

6.05.2010
at 12:18 am EST ScentOfViolets

ScentOfViolets wrote:”I see no reason to continue wasting my time.”

Your prerogative.

SOV:”because of people like you that is large part of Israel suffering such a decline in it’s reputation.”

I’m not sure what you mean by “people like me”, or what you think personal abuse will add to the discussion.

It’s is not up to you or me to determine how much humanitarian aid needs to get through for the blockade to be declared illegal. Who is it up to? I guess that goes back to UK2’s as yet unanswered question to you of which authoritative body will enjoin the activities until their legality is determined. I assume it will be the same body who finally determines the legality of the blockade, but maybe not.

Until such a body makes such a determination, “people like me” will question why those who claim to be concerned about delivering humanitarian aid will choose to make deliberately provocative sea journeys into declared blockades rather than choosing to allow the cargo to be checked prior to its delivery.

6.05.2010
at 1:13 am EST Brian

I’m not sure what you mean by “people like me”, or what you think personal abuse will add to the discussion.

You are the one engaging in personal abuse, not I.

Until such a body makes such a determination, “people like me” will question why those who claim to be concerned about delivering humanitarian aid will choose to make deliberately provocative sea journeys into declared blockades rather than choosing to allow the cargo to be checked prior to its delivery.

You are lying, lying badly, and I can quote what you just said:

You seem to be suggesting that if Gaza doesn’t get in everything that Hamas wants, then Israel has given up the authority

Really, questioning the humanity of a blockade that won’t let seeds or fishing rods or childrens toys through is aiding the terrorists? You’re being abusive and insulting and showing no interest in any conversation.

Enough.

6.05.2010
at 10:34 am EST ScentOfViolets

SOV wrote:”The people who ‘disagree’ with what Israel lets past the blockade cite precisely this fact to show that the blockade is illegal.”

Who makes the determination if enough aid gets through to make the blockade illegal? Almost a ton of aid has come through Israel per man woman and child in the last 18 months. Laws of blockade do not say that everything except weapons can come through.

If the point of the flotilla was not to provoke, but to bring aid to Gaza, why didn’t the ships accept Egypt’s offer to dock there and bring the aid to Gazans via Egypt? Or didn’t they trust Egyptian inspections either?

6.05.2010
at 11:20 am EST Brian

I think that Israel has bent over backwardto ensure that they comply with every nuance of proper blockading under the LOW. The question of whether or not this blockade is, in fact, a recognizably legal blockade, is one that I doubt will ever be answered satisfactorily to both sides of the argument. Personally, I think that Yaniv pointed out a key element, in this quote:
[quote]Here is a short citation from paragraph 18 of Barak’s opinion:
“This law [of IAC] includes the laws of belligerent occupation. However, it is not restricted only to them. This law applies in any case of an armed conflict of international character – in other words, one that crosses the borders of the state – whether or not the place in which the armed conflict occurs is subject to belligerent occupation. ”[/quote]

For me, that is sufficient to give legal justification to the blockade. Intent should be given as much, if not more, weight in interpretation, given that the original law is over 100 years old. A century ago, most nations studiously ignored all civil matters of their neighbors, unless it appeared about to spill over their border.

I think that Israel has bent over backwardto ensure that they comply with every nuance of proper blockading under the LOW. The question of whether or not this blockade is, in fact, a recognizably legal blockade, is one that I doubt will ever be answered satisfactorily to both sides of the argument.

Well, no they haven’t. In fact, the Rachel Corrie was seized this morning. Here’s a partial quote with regard to what is allowed to pass:

“In light of concerns by certain quarters i.e. the Israeli authorities, the activists have therefore unanimously agreed to allow for the inspection of the cargo on board the MV Rachel Corrie. They request and invite for an independent international body, preferably inspectors from the the United Nations to board the ship and do the necessary to certify as to the nature of the cargo on board.”

As of this writing, Israel has refused this offer of a check by independent bodies. And while some will shift the goalposts to “Israel was within it’s rights to do so”, this is hardly “bending over backwards to comply”.

“do you also accept the Israel’s authority to block and inspect civilian vessels?”

I just wrote that they did, so why ask? The occupying power has the authority to inspect incoming traffic for arms and confiscate any so discovered. Israel has done that for decades. That’s not at issue here.

“Given the known attempts of Palestinian “militants” to smuggle arms on non-military ships”

Which they have every right to attempt.

“must agree that Israel had the authority to stop the flotilla”

They would have the authority to inspect the ships if it was strictly an arms embargo, which it isn’t.

6.05.2010
at 8:12 pm EST buermann

Response…Two questions.1) Does the non-state governmental organization in Gaza (Hamas) view Israel proper as an insurrectionist entity on Palestinian land in its refusal to accept the validity of Israel as a state–and if so, what does this mean according to international law? Does it mean nothing? (Since Gaza is not a ‘State’?)
2) Does the consideration by multiple states who claim Hamas to be a Terrorist organization legitimize the conflict as an IAC — meaning that ‘terrorists’ are non-state insurrectionists in an international sense?

buermann writes:We regret their error.
brian: when you misquote a source in order to fit your argument, that is your error, not theirs.
btw, how many of there are you that you respond in first person plural?
I asked about civilian ships in particular as in your post you mentioned “military shipments” – just wanted to clarify that you didn’t disclude civilian vessels.
buermann:”They would have the authority to inspect the ships if it was strictly an arms embargo, which it isn’t.”
brian: nor does it have to be. All a blockade has to let through is basic food water and medical aid. Israel has been doing that and more.http://www.talkgaza.com/flotillafacts/?p=463
Approximately 1 million tons of aid per person has gone through Israel to Gaza in the last 18 months. And then there’s the Southern border of Gaza which Egypt controls – why is there little to no talk of a humanitarian crisis caused by Egypt? Surely it makes more sense for the Gazans to get their aid via their fellow Arabs than the enemy they have sworn to destroy?

“Nothing in this Convention shall affect in any way the rules of international law pertaining to the competence of States to exercise investigative or enforcement jurisdiction on board ships not flying their flag.”

That BTW, means that the investigative and enforcement jurisdiction conveyed by a blockade is not affected by the articles you mentioned.

Please take more care in reading statutes in your professional life than you did here.

I’ll give you this though, at least you cited the 1988 version, rather than the 2005 version that was only adopted by 12 countries.

6.07.2010
at 2:28 am EST Bob

Dear Kevin,

Nice post here. I linked to your post at my blog, where I tried to cover all the aspects and laws in this little debacle.
I hope you give it a look, because I mention some aspects that you don’t. For example, can UNSCR 1860 be taken to be a condemnation of the blockade?

So far, the people who have adamantly stated that the blockade and flotilla raid were definitely illegal are:

I think the best argument is that the flotilla raid was illegal because the blockade is illegal.

The blockade is illegal based on collective punishment, violating paragraph 102 of San Remo, and Article 33 of the Geneva Conventions.

If one doesn’t accept these as enough evidence, then we enter the territory of your argument – the belligerent states position. And as you correctly pointed out, Israel is either in IAC with Gaza, in which case the kidnapping of Gilad Shalit was legal, as is the firing of rockets.
OR, they are not in IAC, in which case the blockade is illegal.

One point I’d just like to add to this, is that everyone seems to be assuming that Gaza is a separate entity. Gaza is not a separate entity, it is part of land given to a Palestinian state according to UNSCR 181 in 1948.

So my question is, since Israel is violating both UNSCR 181 and 242, doesn’t that render its actions since then as illegal automatically?

So what if Israel is occupying the Gaza Strip? – Israel is occupying the West Bank, which is part of a single national ‘state’ as per UNSCR 181.

Therefore, whichever way you look at it, Israel is an occupying force, in violation of international law – the question of the blockade is simply nearsightedness – what about the big picture??If a country is illegally occupying another, then surely a blockade it has placed on an area of that other state is automatically illegal?

6.07.2010
at 11:09 am EST Tarek

Paul E. Merrell argues that, since, in stating that vessels may not be attacked unless, for one thing, they “(a) are believed on reasonable grounds to be carrying contraband or breaching a blockade,” San Remo uses the present tense (“breaching” rather than “will breach”), therefore San Remo would deny Israel the right to attack until the Mavi Marmara left international waters and entered the specified blockade area.
First, “breaching” is not the present tense, as Merrell states, it is the present participle, which can be used to indicate planned future action. For example, you ask me, “What are you doing today?” I answer, “I’m going to the doctor.” Obviously that does not mean I am now on my way, but plan to go sometime later. Or you ask, “Are you going to stay single?” And I say, “No, I’m getting married.” You wouldn’t respond, “I’ll put on my suit and be right over!” but “When?”
That San Remo is using “breaching” in this way is indicated by the logic of the sentence. Once a vessel entered the defined area of blockade, Israel would not have “reasonable grounds” for believing it was breaching the blockade — it would have certainty, since the vessel would at that time have started the actual breach. The inclusion of “reasonable grounds” is incoherent unless it gives the blockading power the right to try to capture and if need be to attack in international waters; but only if it has “reasonable grounds” to believe the vessel is “breaching the blockade,” i.e., has a plan to do so.

Paul E. Merrell argues that, since, in stating that vessels may not be attacked unless, for one thing, they “(a) are believed on reasonable grounds to be carrying contraband or breaching a blockade,” San Remo uses the present tense (”breaching” rather than “will breach”), therefore San Remo would deny Israel the right to attack until the Mavi Marmara left international waters and entered the specified blockade area.First, “breaching” is not the present tense, as Merrell states, it is the present participle, which can be used to indicate planned future action.

that’s not a very valid argument. if you look at section 146 of the san remo document it clearly notes an intent to breach a blockade, so you don’t have to do any conjugatory hair-splitting here.

i think the san remo document is a bit of a red herring here. well, rather, it used to be, but israel’s decision to stop the flotilla in international waters changed the game entirely.

san remo talks of breaching a blockade, but also states what specifically makes a blockade legal, including official notification to all neutral parties of the official blockade including extent (i.e. what is blockaded), duration etc. i don’t think israel ever did this, and they certainly have never published any sort of official list of what is specifically contraband. some organizations like gisha have compiled de facto lists of contraband, but based on interviews with people who have had their shipments seized.

this was never an official blockade. rather israel had it pretty good, going instead by the gaza-jericho agreement where the PA gave up pretty much any and all claim to security over gaza’s waters out to 12nm. israel enjoys the right to stop any and all ships within that border and search them for stuff they deem to be no good. it never was a legal blockade, it was a security agreement between two governments.

but then israel went and stepped in it and boarded these ships in international waters outside of the borders of this agreement. if israel intends to seize ships 50 miles outside of the agreement border then they have to come up with a full-on defense of the ‘blockade’ under the rubric of international law, which is going to be very hard as they never declared a blockade in the way required.

now israel is pointing to e.g. the san remo document in defense of seizing the ships in international waters when they never intended for the ‘blockade’ to be a legal one in the first place. they really stepped into a trap here.

6.08.2010
at 11:49 am EST charles

Charles, you write: “the san remo document it clearly notes an intent to breach a blockade, so you don’t have to do any conjugatory hair-splitting here.”

and then go on to complain about international waters. If they had already, as Jared said, gone out of international waters, they would have breached. “Intent” to breach is like “attempted” murder. You don’t have to wait until the deed is done to stop it. That’s the law.

I’m quite happy to for anti-Israel apologists to keep using the “International waters” argument. It’s so patently wrong, and even in a politic where truth doesn’t always conquer, no reasonable government or organisation is going to want a precedent that will later hog-tie them.

The blockade was declared, ships had been stopped and diverted (without violence from the ships, so without the need for force from Israel) for years now. The warnings the Marmara got are a matter of public record.

6.08.2010
at 5:03 pm EST Brian

Ok, before all discussion is closed on this most educational of threads, does anyone have a good argument as to why the Gaza Blockade would be permissible under San Remo 102?* And if it does, wouldn’t the flotilla be allowed to break an illegitimate blockade?

*(102. The declaration or establishment of a blockade is prohibited if:

(a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or
(b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.
San Remo Manual on International Law Applicable to Armed Conflicts at Sea)

The blockade could not be declared illegal based on San Remo #102 (intent to starve the population) because Israel isn’t trying to starve Gazans; quite the opposite. On the other hand, Hamas does its best to stage images of misery, since that is its job.

The IDF has a website documenting the aid that goes into Gaza daily. If you go to https://www.swivel.com/people/1016582-IDF-Online, you can see, on the right, eight links with statistics on aid delivery – thousands of trucks per month, and so on.

The aid averages about 3000 tons (not pounds) per day, plus hundreds of thousands of liters of various fuels (heating, automobile). In addition, Israel supplies most of Gaza’s electricity, for which Israel is not paid. In addition, Israel treats 70 Gazans per day in its high rated hospitals. (That’s patients and people accompanying them, so the number of actual patients is somewhat lower.) These treatments are free, and patients are treated although some have tried to blow themselves up, to eliminate Evil Jewish Doctors.

Israel spends a great deal on the logistics of shipping food in. Gazans receive more free aid than any other population on earth. There are billions who are orders of magnitude poorer, and receive no aid, and no attention. Gazan poverty is a drama staged by dark forces to teach the world that its problem is The Jews.

When Israel departed Gaza in 2005, with the IDF evicting Jews who had been born and grew up there, thus rendering the territory judenrein, which fits Hamas’ ideology, since it endorses the line of the Protocols of Zion — see “Hamas Charter,” Article Twenty-twohttp://avalon.law.yale.edu/20th_century/hamas.asp — when Israel left, the IDF did *not* destroy any of the Jewish residents’ greenhouses, worth a vast sum, that produced superb vegetables. The evicted residents said, ‘At least they will use them.’

Right. Hamas and Fatah competed in how fast they could destroy those greenhouses. And they claim to care about ordinary Arabs?

Really, what does Israel have to do? Or, shall I say, what nightmares does Hamas have to perpetrate before people stop viewing these clerical fascist gangsters, who feed on ordinary Arabsm, as “the oppressed”?

The blockade could not be declared illegal based on San Remo #102 (intent to starve the population) because Israel isn’t trying to starve Gazans; quite the opposite. On the other hand, Hamas does its best to stage images of misery, since that is its job.

The IDF has a website documenting the aid Israel processes for Gaza daily. If you go tohttps://www.swivel.com/people/1016582-IDF-Online
you can see, on the right, eight links with statistics on aid – thousands of trucks per month, and so on.

The aid averages about 3000 tons per day, plus hundreds of thousands of liters of fuels (heating, automobile). In addition, Israel supplies most of Gaza’s electricity, for which Israel is not paid, and treats 70 Gazans per day in its high rated hospitals. (That’s patients and people accompanying them, so the number of patients is lower.) The medical care is free, and provided although some have tried to blow themselves up, to eliminate doctor-oppressors. Israel spends much on the logistics of shipping food in. Gazans receive more free aid than any other population on earth. Believe it or not, there are billions of people orders of magnitude poorer, who receive no aid, and no attention, and whose main industry is not terror. Gazan poverty is a drama staged by dark forces to teach the world that The Jews cause all problems.

When Israel left Gaza in 2005, evicting Jews who had been born there, thus rendering it judenrein, which fits Hamas’ ideology, since it endorses the Protocols of Zion (see “Hamas Charter,” Article Twenty-twohttp://avalon.law.yale.edu/20th_century/hamas.asp ) — when Israel left, the IDF did *not* destroy the greenhouses, worth a vast sum, that produced superb vegetables. The evicted residents said, at least they will use them. Hamas and Fatah then competed over how fast they could destroy those treasures. And they claim to care about ordinary Arabs?

What nightmares does Hamas have to perpetrate before people stop viewing these clerical fascist gangsters, who feed on ordinary Arabs, and live to kill Jews, as “the oppressed”?

a) It’s main purpose is to stop arms getting through to Hamas. It only started after rockets started falling on Israel. Apart from not being its sole aim, starving anyone isn’t one of its aims at all. 2,000 tons of aid from Israel a week, over 4,800 tons of medical aid last year, over 10,500 patients and their companions from Gaza treated in Israeli hospitals last year, etc. etc. This is not the picture of a State trying to “starve” anyone.

b) military advantage of blockade: Israel doesn’t get destroyed by a well armed Hamas.
Civilian damage of blockade: civilians are living like they’re in a war zone. Probably because they are living in a war zone. That sometimes happens in war.

Fels, comments are closed in 7 hours. I don’t know if I’ll be around the computer to answer your next question.

6.09.2010
at 6:02 am EST Brian

Brian:

i’m not saying the san remo manual doesn’t envision intent to break a blockade. i’m saying it does explicitly, and so there’s no need to look at a different sentence and try to ‘figure what the definition of ‘is’ is’.

the problem with this situation is that this isn’t, and wasn’t, a legal blockade. that’s the crux of the biscuit when it comes to israel’s new-found reasoning in pointing to the san remo document. while it may be okay to board a ship in int’l waters that intends to breach a legal blockade, it’s never okay to board a ship in int’l waters that intends to breach an illegal one.

for a blockade to be legal a lot has to be declared, including the extent (i.e. what is and isn’t allowed). israel has never done this, because it was never meant to be construed as an actual blockade until this point. previous to this it was merely israel securing gaza’s waterways at her behest according to an agreement with the PA.

now that israel stepped in it and went into int’l waters they went outside the scope of their security limits under the gaza-jericho agreement. the moment they went into int’l waters they no longer were securing gaza’s waterways by agreement and were acting solely on their own. then they board a ship and need to come up with a post hoc reasoning for it.

6.09.2010
at 7:05 am EST chopper

Quick response for chopper – here is a response to the part where you actually cited a reason that Israel’s blockade isn’t legal – which is what the rest of your post is based on. You wrote:
“for a blockade to be legal a lot has to be declared, including the extent (i.e. what is and isn’t allowed).”

The San Remo Manual clearly states in S150 what must be let in from vessels that attempt to breach a blockade. Apart from those, there is no obligation to let anything else in.

There has been much talk about Israel not letting through one thing or another from the land border. I think you may be confusing the naval blockade with the land border, which has totally different laws. A land closure can be total with the exception allowing passage of basic (my emphasis) food, water and medical supplies. Israel not only allows passage of more than that, but actually supplies it. That is not part of the Naval blockade.

Hope this clears up any confusion.

6.09.2010
at 8:13 am EST Brian

brian –

the san remo manual is also clear that a blockade must be announced to all belligerents and neutral parties, including the time, duration and extent (which has always been interpreted to mean what is and isn’t allowed). the manual states clearly that this must be specific.

as far as i know israel has never published any list of contraband. indeed what they decide to allow through seems to change week by week and shipment by shipment.

this alone, ignoring the requirement that the blockade not have an asymmetrical impact on the civilian population, means that israel didn’t do their due diligence in making this blockade legal. which makes sense as i don’t believe they ever intended it to be a blockade under int’l law, at least until then needed a post hoc reason for boarding ships in int’l waters.

6.09.2010
at 8:41 am EST charles

Chopper:
You assert without evidence that:

“for a blockade to be legal a lot has to be declared, including the extent (i.e. what is and isn’t allowed). israel has never done this”

“Public declaration – on 03.01.2009, during operation ‘Cast Lead’, the State of Israel declared a naval blockade on the Gaza strip, in the distance of 20 miles from the coast.”

And:

“The establishment of the Naval blockade was published by the ordinary international channels. These publications detailed the geographical boundaries of the blockaded area (by coordinates) and emphasized that the naval blockade shall be in force until a further notice.”

I did a search for “blockade” on the IDF website http://ht.ly/1Vinm and came up with a press relief with the date, Jan. 3, 2009:

” ‘Cast Lead’ – Naval Blockade of Gaza, 3 Jan 2009

DOTZ

3 January 2009

IDF Enforces Naval Blockade on Gaza

In accordance with the order made by the Defense Minister and current security assessments, as of Saturday January 3rd, 2009, the IDF has begun enforcing a naval blockade for 20 nautical miles from the Gaza Strip.

Gaza‘s shore is used by the Hamas terror organization, and the presence of its operatives on the shoreline and in the open sea constitutes a threat against the citizens of southern Israel.”

Since the IDF seem to be normally efficient, one would assume that, having announced the blockade, the MAG Corp did send a properly detailed notification, through the normal channels, albeit without a cc to you.

Earlier you stated: “this was never an official blockade. rather israel had it pretty good, going instead by the gaza-jericho agreement where the PA gave up pretty much any and all claim to security over gaza’s waters out to 12nm.”

And later:

“now that israel stepped in it and went into int’l waters they went outside the scope of their security limits under the gaza-jericho agreement. the moment they went into int’l waters they no longer were securing gaza’s waterways by agreement and were acting solely on their own. then they board a ship and need to come up with a post hoc reasoning for it.”

Now you say they Israel never published a list of contraband, which implies they *did* declare the blockade. (Otherwise what’s the relevance?)

“Public declaration – on 03.01.2009, during operation ‘Cast Lead’, the State of Israel declared a naval blockade on the Gaza strip, in the distance of 20 miles from the coast…the establishment of the Naval blockade was published by the ordinary international channels. These publications detailed the geographical boundaries of the blockaded area (by coordinates) and emphasized that the naval blockade shall be in force until a further notice.”

I searched for “blockade” on the IDF website http://ht.ly/1Vinm and found a Jan. 3 2009 press release:

” ‘Cast Lead’ – Naval Blockade of Gaza, 3 Jan 2009

IDF Enforces Naval Blockade on Gaza

In accordance with the order made by the Defense Minister and current security assessments, as of Saturday January 3rd, 2009, the IDF has begun enforcing a naval blockade for 20 nautical miles from the Gaza Strip. (etc.)”

I assume the MAG Corp did send a properly detailed notification through the normal channels.

6.09.2010
at 9:39 am EST jed

c-“a blockade must be announced to all belligerents and neutral parties”
b-It was announced, and there have been many ships turned away because of the blockade before this flotilla of provocation, and there were even highest level talks with Erdogan before it left Turkey about it. You surely aren’t suggesting that it wasn’t announced? Who do you think Israel didn’t tell?

c-“including the time, duration”
b- this seems to me like a strange request for the manual to call for from a blockading power. Surely the writers of the law didn’t expect parties to know in advance how long the conflict would go. That would leave the territorial waters unprotected from a set known date. Of course, if the conflict was continuing, they could re-announce the day before the previous one ended. It’s like having a due date on your library book and calling to extend it. What’s the point in that in an armed conflict?
I can’t find reference to this in the Manual, could you cite where it is? tnx.

c-” and extent (which has always been interpreted to mean what is and isn’t allowed)”
b- check S150 of the San Remo Manual regarding what must be allowed.

c-“requirement that the blockade not have an asymmetrical impact on the civilian population”
b- This doesn’t seem right. By asymmetrical are you implying that one party to an armed conflict can’t do anything that may impact the enemy population unless they do the same to their own population? Again, if you could cite some sort of evidence for that it would help.

AFAIK, the law pertaining to impact on a civilian population demands only that basic food, water and medical supplies are allowed passage. And Israel has been allowing and actually providing way more than that.

I think that you and chopper are confusing bits from naval blockade and bits from land closure.

Anyway, I won’t be at the computer before this thread closes, to post more replies, but I would appreciate those references for the points you made. thanks.

6.09.2010
at 9:44 am EST Brian

and extent (which has always been interpreted to mean what is and isn’t allowed)”b- check S150 of the San Remo Manual regarding what must be allowed.
the san remo document states what cannot be blockaded. that isn’t the same as a specific notification by the blockading power, as required by the same document, of the extent of the blockade.c-”requirement that the blockade not have an asymmetrical impact on the civilian population”b- This doesn’t seem right. By asymmetrical are you implying that one party to an armed conflict can’t do anything that may impact the enemy population unless they do the same to their own population? Again, if you could cite some sort of evidence for that it would help.
no, that isn’t it. it means that (as the manual clearly sets forth) the impact on the civilian population cannot be greater than the military objective asserted. this is stated by the manual as a finding of fact.

the section of the manual defining a legal blockade is pretty specific.

6.09.2010
at 9:50 am EST charles

to put it another way: you can’t reasonably point to one paragraph in san remo which discloses what items cannot be part of a blockade as fulfilling israel’s requirement in another paragraph to specifically lay out the extent of their blockade. if that were so, the requirement for blockading nations to specify the extent would be moot from the get-go, as the mere noting by san remo of what cannot be blockaded would automatically fulfill that requirement.

why would san remo even have that requirement at all then?

6.09.2010
at 9:57 am EST charles

Since Israel facilitates the delivery of thousands of tons of necessities daily, paying costs of delivery, and treats dozens of Gazans free daily in its hospitals, and provides, unpaid, most of its electricty, so that Gazans are the most aided people on earth, and since, on the other hand, if Hamas were to receive military shipments from Iran, unhindered, they would be able to devastate Israel with medium range missiles, the blockade is obviously not asymmetrical.

6.09.2010
at 10:33 am EST jed

Charles claimed made twice earlier that Israel only declared the blockade AFTER capturing the flotilla, so that it is a fiction invented to justify after the fact/

If you go to http://www.mag.idf.il/592-4071-en/Patzar.aspx you can read the IDF legal departments assertion that it announced the blockade on Jan. 3, 2009, sending out notifications through the usual international channels, and if you go to the IDF page at http://ht.ly/1Vinm and search for “blockade” you will find a press release dated Jan. 3, 2009 announcing the blockade. I would assume IDF legal department was competent enough to do as it said it did, send notifications through the normal channels, though undoubtedly without CC to Charles.

Charles earlier twice claimed that Israel only declared the blockade AFTER capturing the flotilla, so that it is a fiction invented to justify after the fact/
If you go to http://www.mag.idf.il/592-4071-en/Patzar.aspx you can read the IDF legal departments assertion that it announced the blockade on Jan. 3, 2009, sending out notifications through the usual international channels, and if you go to the IDF page at http://ht.ly/1Vinm and search for “blockade” you will find a press release dated Jan. 3, 2009 announcing the blockade. I would assume IDF legal department was competent enough to do as it said it did, send notifications through the normal channels, though undoubtedly without CC to Charles.

6.09.2010
at 10:39 am EST jed

Charles earlier twice claimed that Israel only declared the blockade AFTER capturing the flotilla, so that it is a fiction invented to justify after the fact/
If you go to http://www.mag.idf.il/592-4071-en/Patzar.aspx you can read the IDF legal departments assertion that it announced the blockade on Jan. 3, 2009, sending out notifications through the usual international channels, and if you go to the IDF page at http://ht.ly/1Vinm and search for “blockade” you will find a press release dated Jan. 3, 2009 announcing the blockade. I would assume IDF legal department was competent enough to do as it said it did, send notifications through the normal channels, though undoubtedly without CC to Charles.

6.09.2010
at 10:52 am EST JI

jed:

well, whether or not the impact of the blockade on the civilian population is greater than the military objective is certainly the most subjective of the legal requirements. surely you can see that there are many who would disagree with you. UN factfinding missions have supported the idea that the blockade is very one-sided.

that being said, that’s the sort of thing that’ll have to be hashed out in some official hall somewhere.

6.09.2010
at 11:21 am EST charles

Brian and Charles, many thanks for the responses. Brian, despite the impressive sounding raw numbers of supplies reaching Gaza the Goldstone report and the Red Cross still maintain that it’s not enough to meet the needs of residents or sustain the local economy. If the only effect of the blockade were the interception of arms then we wouldn’t be having this conversation; it’s the punitive aspect of blocking a whole range of non-military goods that undermines this justification of self defense.

Charles is quoting San Remo 93-94 on the “duration, location, and extent of the blockade”. By duration I assumed it means the conditions under which the blockade would end. The Israeli government did publish a list of blocked goods after it lost a suit to an Israeli human rights group but that list still changes seemingly at random.

6.09.2010
at 11:33 am EST Fels

On the contrary, it is quite objective. 1) the IDF provides statistics on their website breaking down how much goes in when. These statstics are never refuted — simply ignored. If they are right, it is preposterous to argue that Gazans are in want. 2) Do you deny that Israel seized a ship with half a million tons of arms from Iran that was attempting to breach the blockade on Nov. 9, 2009? Massive bombardment of a tiny state (Israel ) can mean its obliteration. Since Israel willingly delivers more aid than required under San Remo (e.g., nowhere in San Remo does it say Israel needs to treat Gazans in its hospitals) and given the lethal goals and Iranian backing of Hamas, there is nothing subjective about my conclusion. Israel has no choice but to maintain the blockade — other than to go in and eliminate Hamas (not ordinary Gazans — Hamas.)

6.09.2010
at 11:39 am EST jed

Fels, if you’re talking about the Gisha case, i’m still not sure the israeli government actually stated what they don’t allow. every list i’ve ever seen has been compiled by international organizations based on interviews with people trying to bring goods into gaza.

got a link?

6.09.2010
at 11:42 am EST charles

San Remo makes a specific statement about the delivery of aid: ” If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to:” (then it states justifiable conditions limiting aid.)
It never states that a total list of excluded goods must be published. Israel organizes the daily delivery of far more than “food and other objects essential for its [gazans’] survival.” What previous blockade anywhere provided more? THe point of Goldstone et al is to make demands on Israel such that the blockade becomes impossible.

6.09.2010
at 11:54 am EST jed

Jed said: “On the contrary, it is quite objective. 1) the IDF provides statistics on their website breaking down how much goes in when. These statstics are never refuted — simply ignored. If they are right, it is preposterous to argue that Gazans are in want.”
They are refuted or at least put into context by the Goldstone report and various NGO’s. The context is that it isn’t enough.

Even if you don’t accept that Gaza is experiencing a humanitarian crisis (which you are free to do) San Remo doesn’t actually require that a crisis occur for the blockade to be overstepping its legal boundaries, only that “the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.” (102) If you can explain how blocking food and medicine shipments creates a military advantage that outweighs its impact on civilians I am all ears. Israel can give each Gazan a ton of food a month and that still won’t allow blocking shipments with no military impact.

Charles: I think I do have a link, I’ll dig it up when I’m back later on this evening.

6.09.2010
at 12:01 pm EST Fels

Fels makes an “if-you-can-explain-why-it’s-ok-to-beat-your-wife” argument. No I cannot justify not delivering food and medicine. Rather, I can say they DO delivery food and medicine, and more.

By going to the idf website, easily accessed via google, one can find eight (8) web pages devoted to the statistics on the thousands of TONS daily of food and other necessities and hundreds of THOUSANDS of liters of various fuels, shipped into Gaza, far more than goes to far poorer people all over the world. Much is provided free by Israel. Transportation is covered by Israel. Electricity, free by Israel. Medical care, free by Israel.

No, Fels, it is not justifiable to starve gazans; it is a lie.

6.09.2010
at 12:08 pm EST jed

jed:

On the contrary, it is quite objective. 1) the IDF provides statistics on their website breaking down how much goes in when. These statstics are never refuted — simply ignored.

but amounts on their own don’t mean that there isn’t disparity on its face. saying ‘x tons of stuff goes in’ doesn’t mean everything’s fine. likewise it depends heavily on the type of aid and the nature of the population.

If they are right, it is preposterous to argue that Gazans are in want.

it seems pretty clear to me at least that gaza is becoming a humanitarian nightmare. the argument that gazans aren’t in want beggars belief.

the rest of your post really has no bearing on the legality of the blockade. the status of the blockade doesn’t stand or fall on whether or not iran tried to bring in weapons or not.

6.09.2010
at 12:20 pm EST charles

again, read the san remo document. it states that blockading countries must specifically disclose the extent of the blockade. that has always been interpreted (common sense, if you ask me) as specifically disclosing what is actually blockaded. not to the point of each individual item, but it must at least be specific.

gisha took the israeli government to court over it, and israel said ‘we do have a list of blocked items, but we refuse to make it public because it’ll harm national security and our foreign relations’. the former is a typical handwave, the latter is more than likely true if the rest of the world saw the actual list.

i’m sorry guys, but there doesn’t really seem to be any way around this requirement. to make this blockade legal israel has due diligence in releasing some details about what is contraband.

6.09.2010
at 12:25 pm EST charles

Electricity, free by Israel

electricity in gaza is shameful. almost every palestinian in gaza has to deal with at least 8 hours a day of no electricity.

i wouldn’t bring up electricity as an example of israel’s government providing for the people of gaza.

6.09.2010
at 12:36 pm EST charles

These anti-israel characters flip their arguments with only one concern: to attack Israel. Earlier Charles said in two posts that Israel never declared a blockade. They had never meant to have a blockade. It was, he claimed, declared only after the flotilla incident. Then he switched, and argued that Israel didn’t publish a proper list of forbidden items — which is incoherent if Israel never declared a blockade. So: “We have no argument; abuse Israel.”

You can find a Jan. 3, 2009 press release announcing institution of a 20 mile blockade by seaching for “blockade” at idfspokesperson.com

The line that Israel is starving Gaza top get a minor military advantage is simply anti-Israel propaganda to justify destroying the blockade so Hamas can destroy Israel. Period.

6.09.2010
at 12:39 pm EST jed

However, Gazans DO have a very serious problem. It’s called Hamas. When your government declares (in the Hamas charter) that Israel must be eliminated and then lobs 10,000 missiles into it in five years, you have to expect some problems. If Gaza were doing that to any European (or for that matter Arab) state, there would be no more Gaza.

That Israel nevertheless spends more per person on residents of Gaza than on poor Israelis, and then is viciously attacked for its cruelty to Gaza, shows that Jew hatred is not dead in this world.

6.09.2010
at 12:44 pm EST jed

These anti-israel characters flip their arguments with only one concern: to attack Israel.
sorry, but you’re barking up the wrong tree if you’re going to handwave criticism of israel’s policy here with ‘anti-israeli sentiment’. half my family is israeli (tel aviv). i’m a strong supporter of israel’s general security. however, like with america, i still require her to stick to international law.

Earlier Charles said in two posts that Israel never declared a blockade. They had never meant to have a blockade.
no. what i said was, only now is israel pointing to international law regarding blockades after this incident. previously, they can call it one, but it wasn’t treated as an actual blockade. as i said, they never told neutral parties of the time and extent of the blockade. rather it was, by israel’s eye, merely enforcing security in gaza’s waterways.
if israel really intended for it to be a legal blockade under international law i’m sure they would have done some due diligence in fulfilling the requirements thereof for such a blockade.
it’s similar to the occupation. we all consider israel to be occupying the gaza strip. yet israel doesn’t.
the point is, now israel is pointing to international law saying these ships intended to break a blockade. okay, fine – if it really is a blockade, then why is it you never fulfilled the obligations of law in establishing a blockade? doesn’t that mean this blockade is illegal and you had no right to board these ships in international waters?
this is my entire point. previous to this incident israel could avoid the law regarding blockades as they never really asserted that it was one. now that they are, the legality of it is the first thing we ask about. and it looks on its face that it isn’t a legal blockade at all.
i guess that makes me anti-israel, but if that’s the crux of your argument then you aren’t worth arguing with.You can find a Jan. 3, 2009 press release announcing institution of a 20 mile blockade by seaching for “blockade” at idfspokesperson.com

i see a general post about a blockade, but no specifics about duration or extent. if that’s the official declaration of a blockade under int’l law then it most certainly isn’t a legal blockade.

6.09.2010
at 12:57 pm EST charles

That Israel nevertheless spends more per person on residents of Gaza than on poor Israelis, and then is viciously attacked for its cruelty to Gaza, shows that Jew hatred is not dead in this world
this emotional response (i guess i’m a self-hating jew now for daring to ask that israel follow international law by demonstrating that their blockade is legal) just goes to show how bankrupt your viewpoint is. pound the podium i guess.

6.09.2010
at 1:01 pm EST charles

and by the way, i think the us embargo on cuba is brutal. i still haven’t seen any reasonable defense of it viz. international law.

i guess that makes me an america-hater as well.

6.09.2010
at 1:25 pm EST charles

Charles —

By claiming that you care deeply about Israel’s security, you make your honesty an issue. So let’s test it with your claim that you did NOT say, earlier, that Israel only raised the blockade justification post hoc. Here’s what you wrote:

“this was never an official blockade. rather israel had it pretty good, going instead by the gaza-jericho agreement where the PA gave up pretty much any and all claim to security over gaza’s waters out to 12nm.”

And later you, Charles, wrote:

“now that israel stepped in it and went into int’l waters they went outside the scope of their security limits under the gaza-jericho agreement. the moment they went into int’l waters they no longer were securing gaza’s waterways by agreement and were acting solely on their own. then they board a ship and need to come up with a post hoc reasoning for it.”

Obviously, if all they every spoke of was the Gaza-Jericho agreement, then they were NOT saying they had a blockade. And if they were thereby limited to 12 nautical miles, it was not the current blockade, of 20 nm.

But the IDF announcement on Jan. 3, 2009 states that a TWENTY nm (not 12) blockade has been instituted, orders of the Defense Minister.

This IDF press release stating that by government decree they had instituted the blockade is crucial for this reason: it confirms that Israel was NOT justifying its actions post hoc.

Of course, one does not notify the relevant powers concerning a blockade, or list all conditions, in a brief press release. On the MAG group’s (IDF legal group) information page on the blockade that I have uploaded here
tenc.net/archive/magflotilla.htm
we are told:

“Public declaration – on 03.01.2009, during operation “Cast Lead”, the State of Israel declared a naval blockade on the Gaza strip, in the distance of 20 miles from the coast
[…]
The establishment of the Naval blockade was published by the ordinary international channels. These publications detailed the geographical boundaries of the blockaded area (by coordinates) and emphasized that the naval blockade shall be in force until a further notice. ”

“Ordinary international channels.” I assume that since the IDF did announce the existence of the blockade on Jan. 3, the MAG group was competent enough to carry out the proper notification through said channels.

6.09.2010
at 1:33 pm EST jed

Kevin. Can I say thanks for hosting this discussion and for the contributions of everyone. Been a good read. I’d add a comment on the issue of proportionality if I may, and invite debate.

The test of proportionality, in the context of the blockade and its impact on civilan populations, must surely be the (estimated) suffering that the Israeli civilian population would endure if the blockade was not in place. That would be at least one concrete military advantage.

Hamas have used as their choice of attack an area weapon which is targeted at population centres. When a Grad rocket is aimed at Ashkelon the whole city stops & ducks for the shelters. Since the blockade is stopping the flow of larger & longer range weapons which cannot be smuggled in via clandestine means it can be stated that millions of Israli citizens would come under attack if those longer range & more devastating rockets are allowed in. The two parties are in a state of conflict and prior history suggests clearly that Hamas would use the rockets if they had an uninterrupted supply of them, so the military advantage is rather obvious is it not? Even a reduction in the qassam rocket fire, by reducing the flow of materials to make them, is a significant military advantage and Hamas have exascerbated that by improving their range & thereby affecting more Israeli civilians.

A free flow of more devastating weaponry from Iran to Hamas would cause suffering to the Israeli civilian population at least equal to, more likely significantly greater than, what the Gazans are now enduring. This is a scenario of an unrelenting barrage of (much more destructive) rockets on Israeli towns and cities. On that basis it’s very difficult to understand the proportionality arguments. It seems to me that the only people who claim the blockade is illegal on grounds of proportionilty are those who want it to be illegal.

6.09.2010
at 1:55 pm EST Gavin

Here’s what you wrote:“this was never an official blockade. rather israel had it pretty good, going instead by the gaza-jericho agreement where the PA gave up pretty much any and all claim to security over gaza’s waters out to 12nm.”And later you, Charles, wrote:“now that israel stepped in it and went into int’l waters they went outside the scope of their security limits under the gaza-jericho agreement. the moment they went into int’l waters they no longer were securing gaza’s waterways by agreement and were acting solely on their own. then they board a ship and need to come up with a post hoc reasoning for it.”
indeed. israel never treated this as an official legal blockade. they never even let the international community know of the time and extent of it. now they’re pointing to international law after they need justification.
you post information about an announcement, but that announcement is not specific about time (‘until further notice’ is clearly not a specific notice of duration) nor extent, nor authority under law. it clearly isn’t a legal declaration of a blockade because it’s missing the simple specific details required.
it seems to me that only after the flotilla situation did israel finally start pointing to any legal structure commensurate with the ‘blockade’, notably the non-binding san remo document among others, even though san remo clearly shows that it couldn’t have been a legal blockade.
and that’s my entire point. whether israel made a few moves here or there or used the word ‘blockade’ to describe it back in 2009 doesn’t really matter. they certainly didn’t do the basic due diligence in announcing an actual legal blockade and treated the ‘blockade’ more like the routine patrolling of gaza’s waters they had been doing 15 years before this announcement you point to, only turned up.
then they went and boarded a boat in int’l waters, and suddenly needed justification. but what do i know, i’m a self-hating jew who hates jews and israel.

6.09.2010
at 2:08 pm EST charles

It seems to me that the only people who claim the blockade is illegal on grounds of proportionilty are those who want it to be illegal.

as i said before, it seems the most subjective of the requirements. while many think that the blockade has made gaza far more of a stinking hell hole than it was before, i think its something that should be hashed out in more an official manner than a bunch of guys arguing on the internet.

this goes also for the rest. i think its high time the blockade was forced to withstand the test of actual international law.

6.09.2010
at 2:22 pm EST charles

Charles–

Well, as I wrote, you switch your argument with your only concern to kill the blockade, which would be an existential defeat for Israel.

The fact that Israel officially declared a blockade on Jan. 3, 2009, means that in May 2010 the blockade was not a post hoc invention to justify a supposedly illegal action, as you argued.

So now you say they may have announced it, but, you claim, they never notified the international community of all details. But you have *zero* basis to make that claim.

The Mag Group web explanation, which, again, I have uploaded at
tenc.net/archive/magflotilla.htm
states that Mag did notify said community, through normal (diplomatic) channels.

Now, having made the claim that Israel did not treat the blockade seriously because it did not notify the international community (apparently you have access to normal diplomatic channels) you then say, regarding the MAG group report that I uploaded:

“but that announcement is not specific about time (’until further notice’)

But if you deem the blockade illegal because, you claim, the Mag group did not properly specify the duration of the blockade when they notified people, you cannot ALSO claim that you have no reason to believe they notified the proper parties. That is an example of not caring about the coherence of one’s arguments, as long as said arguments make people believe the blockade is illegal, so Hamas can get its weapons.

Now, as to the validity of your objection about duration: in some conditions it might be possible to give a specific end-date for a blockade, but often a state could not know. In such cases it would be proper to tell belligerents and neutral states that the duration is, “until further notice.”

And keep in mind, if the MAG group had not properly notified all belligerents and neutral states, we would have heard about it soon after the flotilla incident from officials at one or more states. Israel has been accused of illegally bording the flotilla by everyone from Ashton at EU (neutral states) to Hamas (belligerent), but nobody claims they were not properly notified.

6.09.2010
at 2:42 pm EST jed

Well, as I wrote, you switch your argument with your only concern to kill the blockade, which would be an existential defeat for Israel.

i’m not changing my argument at all. israel clearly didn’t put forth a legal blockade. and ‘existential defeat’ is hyperbolic. hamas didn’t destroy israel before this ‘blockade’, it won’t do it after israel is forced to do it right. besides, as i said, israel already patrols and secures gaza’s territorial sea. just because israel can’t board ships in international waters without a legal blockade won’t lead to her destruction.

The fact that Israel officially declared a blockade on Jan. 3, 2009, means that in May 2010 the blockade was not a post hoc invention to justify a supposedly illegal action, as you argued.

israel didn’t declare a legal blockade. they used the word ‘blockade’ but that alone doesn’t establish a legal blockade.

So now you say they may have announced it, but, you claim, they never notified the international community of all details. But you have *zero* basis to make that claim.

on the contrary, i’ve pointed out time and again that specifics are necessary to make it a legal blockade. you’ve asserted time and again that such specifics were offered, and have yet to actually show them. you keep pointing to the mag group doc, but there’s nothing about extent or specific duration in that. i’ve said that about three times now, and all you do is point to it again and again and say ‘but it’s official’.

But if you deem the blockade illegal because, you claim, the Mag group did not properly specify the duration of the blockade when they notified people, you cannot ALSO claim that you have no reason to believe they notified the proper parties.
you don’t understand. i’m not saying they didn’t notify anyone of a ‘blockade’. they didn’t notify people of a legal blockade. just because israel put out a press release with the word ‘blockade’ in it doesn’t make it a good faith effort to put forth the details necessary under international law. this is why israel never really treated it as a real, legal blockade. they half-assed it.

That is an example of not caring about the coherence of one’s arguments, as long as said arguments make people believe the blockade is illegal, so Hamas can get its weapons.

lol, yeah. that’s totally it. i’m not concerned about the rule of law, i just want terrorists to kill jews. maybe they’ll kill my cousins in tel aviv or haifa!

or maybe this hyperbolic garbage about ‘you want to arm terrorists’ is just that, garbage.

Now, as to the validity of your objection about duration: in some conditions it might be possible to give a specific end-date for a blockade, but often a state could not know. In such cases it would be proper to tell belligerents and neutral states that the duration is, “until further notice.”

that isn’t specific as necessary. there’s nothing wrong with giving an end date. you can always institute another blockade in the future or extend the current one, you know. but the law requires specifics, and ‘until further notice’ is anything but.

again, this was never a legal blockade. accusations of anti-semitism, anti-israelism and pro-terrorism just go to show that you’re arguing from an extremely emotional point of view, rather than concern with the rule of law.

6.09.2010
at 3:19 pm EST charles

Jed, you missed my point. Israel’s blockade fails San Remo 102(b) because it blocks the importation of goods with no conceivable military value. Giving them equal goods later (assuming they do) is still an overstepping of Israel’s authority. It would be like me confiscating your wages and justifying it because I give you an equal amount of money tomorrow. I simply don’t have the authority.

If you want to interpret San Remo 102(b) as applying to the blockade as a whole and not to individual goods then the question of how dire humanitarian conditions in Gaza are comes into play and we rehash arguments about why the Goldstone report is right or wrong. Although you’d still have to defend the blockade as not being collective punishment and the military necessity of banning musical instruments.

Charles, I can’t seem to find the link and NPR just had an Israeli spokesman explaining that there is no concrete list making it’s illegality under San Remo 94 the stronger argument against it.

6.09.2010
at 4:14 pm EST Fels

Charles, I can’t seem to find the link and NPR just had an Israeli spokesman explaining that there is no concrete list making it’s illegality under San Remo 94 the stronger argument against it.

that’s what i figured – in the gisha case israel’s government flat-out refused to make public any list. i was wondering if there was another case i had missed.

basically, from jed’s posts, this is what i’ve been able to discern: despite the fact that i think israel is well within her right to stop, board and inspect any ships in gaza’s territorial waters looking for weapons or terrorists, the fact that i don’t believe that right extends 60 miles out in international waters without a real, actionable blockade declaration that’s fitting under international law means that i’m a jew-hating anti-israel person who wants to see hamas given more guns.

6.09.2010
at 4:19 pm EST charles

Regarding antisemitism and support for terrorism, I have no idea what Charles or anyone else on the Internet, that land of illusion, actually thinks. My point was that antisemitism – an underlying hostility to Jews that makes people far more likely to suspect that Jews will do evil things, because they believe that is their nature as Jews — antisemitism his is the reason that people can be won to the manifestly unfair and often fairly stupid arguments people make when attacking Israel.

Whatever the beliefs of Charles or others, the reason they are not laughed out of court is antisemitism. (Consider that the EU is infinitely harsher to Afghans than Israel is to Arabs — e.g., German forces in Afghanistan recently killed a huge number of civilians — but nobody calls the EU a pariah…)

As for Charles sympathizing with terrorists – again, we can’t know what the person behind a screen name really thinks, but we can know the effect of what he, she or they argue. And what the anti-Israel crowd including Charles argues supports terror.

Whatever the intention, The EFFECT of Charles’ latest argument, that a) he really cares about Israel and b) Israel can do just fine searching ships in Gaza territorial waters but it’s just that c) aw shucks, they messed up on the blockade — the effect is to tell people that even this (claimed!) friend of Israel sees that Israel is wrong, which morphs into support for: Open Gaza. And Open Gaza means missiles for Hamas, which in the end gives Israel the choice of devastation or war. War possibly escalating to include Iran and Turkey, possibly meaning NATO troops, who knows. Indeed, an existential threat.

Charles more-or-less argues that it’s adequate for Israel to search vessels in Gaza waters. In fact, you cannot properly prevent importation of weapons on ships – possibly ships with escorts – unless you have a legally recognized right to direct them, or if they refuse, to force them to redirect to your port. That requires a blockade, which Israel has enforced since January 2009 — not searching ships, but bringing them to port!

Trying to board and search ships close to Gaza would permit Hamas/Iran to stage provocations, where for example suffering Gaza fishermen could be photographed as they tried with their frail little charming boats to protect jeans-clad elderly peace activists on humanitarian vessels, owned by the IHH. And every time, the press would call for Israel’s blood.

Charles’ argument that by stating that the blockade would last “until further notice,” the Mag corps was failing the San Remo requirement to state the duration of the blockade — that argument is frivolous. The only alternative the Mag corps had was to give a false date, whereupon Israel would be attacked for knowingly misleading other states, by people who would say they really really care about her security,

As for stating the extent of the blockade, obviously there was lots of detail in the actual document, whose content neither Charles nor I know, since we are not in the “normal international channels” to which such things are sent. But again, if Israel had flubbed the declaration of blockade, we would be hearing about that from the EU, Turkey, Hamas, etc., etc., all of whom would love to prove the blockade is illegal.

Their silence is proof that the Mag corps did it right.

( Since I suggested it’s best to identify oneself, if possible, I am Jared Israel, emperors-clothes.com )

6.09.2010
at 5:56 pm EST jed

Jed said: “Whatever the beliefs of Charles or others, the reason they are not laughed out of court is antisemitism. (Consider that the EU is infinitely harsher to Afghans than Israel is to Arabs — e.g., German forces in Afghanistan recently killed a huge number of civilians — but nobody calls the EU a pariah…)
As for Charles sympathizing with terrorists – again, we can’t know what the person behind a screen name really thinks, but we can know the effect of what he, she or they argue. And what the anti-Israel crowd including Charles argues supports terror.”

This kind of well poisoning is deeply disturbing and far too common. If you genuinely believe that international condemnation of Israel’s human rights record and military actions is a product of baseless anti-Semitism then there is nothing more to discuss.

6.09.2010
at 9:31 pm EST Fels

I didn’t say international condemnation of Israel — by governments and the media primarily, since ordinary people have not poured out onto the streets condemning Israel. and many do support Israel — is a product of antisemitism. I believe powerful establishment forces are attempting to incite public opinion against Israel not because of what these powerful forces believe, but for strategic reasons, which they do not bother to tell the public.

What I said is that the factually inaccurate and often incoherent arguments made against Israel would be laughed out of court if it were not for antisemitism, which by the way, properly defined, is the belief that Jews are a cohesive and evil force that manipulates nations to gain power and hurt Gentiles. That people have been exposed to that really well-poisoning belief is not their fault. The tragic (for them, and for Jews) consequence of that exposure is that they are more inclined to accept descriptions of the world, including of Israel, that are preposterous. That is the purpose of political antisemitism and has been for almost two centuries.

I have posted a lot on this thread. I mentioned antisemitism once, in an earlier post, not in specific reference to Charles, but in regard to why people in general can be gotten even to entertain preposterous anti-Israel ideas.

Charles, having lost the argument on its merits, then repeatedly claimed I had called him an antisemite. A clumsy bit of demagoguery on his part.

Therefore, in my last post, I explained that I had not made a judgment about Charles’ personal beliefs, since I don’t what they are, or even that he is “Charles,” and moreover the question of what motivates his attack on Israel is a secondary matter; but rather as regards why people who raise incoherent anti-Israel arguments would even get a hearing. My point is that the ‘well’ — the climate of political discourse — has been poisoned for a long time by antisemitic ideas, and that this climate is a boon to the incoherent.

Jared Israel, tenc.net

6.09.2010
at 10:53 pm EST jed

Trackbacks and Pingbacks

[…] at Opinio Juris, Kevin Jon Heller has an excellent post in which he suggests that the legality of the blockade depends on the type of armed conflict is […]

[…] it seems reasonable to look at the legality of all this. See Opinio Juris for a few thoughts on the Gaza blockade. And EJIL: Talk! for thoughts on proportionality. Here’s a Q and A, also on the legality of […]

[…] raid, see this analysis from former British Ambassador and maritime law expert Craig Murray, and this one from International Law Professor Kevin Jon Heller (the Post has a decent article on this topic […]

[…] tiny bit of wiggle room for Israel to claim it’s actions were legal, but probably not – Why Is Israel’s Blockade of Gaza Legal? (Updated) L.C. Green, one of the great IHL scholars, agrees with this analysis. If this is still the state […]

[…] civilian vessels in international waters is legal under the laws governing naval blockades. Australian legal scholar Kevin Jon Heller doesn’t dismiss this argument, but he raises some very serious questions. Key point: If the […]

[…] than I ever can (NOT a lawyer–my logic is statistical and quantitative, not verbal and legalese!) Opinio Juris Anyhow, the long and short of it: Israel and Hamas are in armed conflict. Hamas shoots rockets, […]

[…] than I ever can (NOT a lawyer–my logic is statistical and quantitative, not verbal and legalese!) Opinio Juris Anyhow, the long and short of it: Israel and Hamas are in armed conflict. Hamas shoots rockets, […]

July 24, 2015Recent International Legal Scholarship on the Crisis in Ukraine
As the fighting in Ukraine continues into its second year, recent reports have variously focused on the promise of a weapons withdrawal and the risk that there is the opening of a new front opening. Recent international legal scholarship has attempte...